Cornell Journal of Law and Public Policy
Volume 17
Issue 2 Spring 2008
Article 1
The President’s Question Time: Power,
Information, and the Executive Credibility Gap
Sudha Setty
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Setty, Sudha (2008) "The President’s Question Time: Power, Information, and the Executive Credibility Gap," Cornell Journal of Law
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THE PRESIDENT'S QUESTION TIME:
POWER, INFORMATION, AND THE
EXECUTIVE CREDIBILITY GAP
Sudha Setty*
ABSTRACT
The rule of law depends on a working separation of powers and
transparency and accountability in government. If information is power,
the ability of one branch of government to control information represents
the ability to control federal legislation, policy, and decision-making.
The Framers of the United States Constitution developed the Madisonian
model of separated powers and functions, and a system of checks and
balances to maintain those separations, with this in mind. History has
shown a progressive shift of the power to control information toward the
executive branch and away from the Legislature. Particularly when unified, one-party government precludes effective Congressional investigations and oversight, little recourse exists for accessing information. This
article addresses an institutional design element that would increase
transparency and accountability: periodic question-and-answer sessions
between Congress and the President modeled on the United Kingdom's
Prime Minister's Question Time. This article makes the case for such a
measure in the U.S. by examining the comparative political history and
legal norms of the U.K. and the United States, and the need for a Question Time to increase government transparency and efficiency.
A BSTRA CT ..................................................
INTRODUCTION .............................................
I. NO EFFICIENT CHECK ON AN INCREASINGLY
POWERFUL EXECUTIVE BRANCH ..................
A.
247
248
250
CONSOLIDATION OF POWER IN THE EXECUTIVE
BRANCH .......................................... 252
* Assistant Professor of Law, Western New England College School of Law. J.D. Columbia Law School, A.B. Stanford University. Sudha Setty © 2007. I owe great thanks to
those who discussed with me the ideas in this article, or who reviewed and commented on
drafts, including: Robert Chesney, Allison Christians, Robert Ferguson, Richard Kay, Kim
Lane Scheppele, Miguel Schor, Erin Buzuvis, Lauren Carasik, Jamison Colbum, James
Gordon, Jennifer Levi, Bruce Miller and Matthew Charity. I also appreciate the comments and
suggestions offered by workshop participants at the Northeastern Junior Faculty Exchange,
where I presented a draft of this paper. Finally, I thank the editors and staff of the Cornell
Journal of Law & Public Policy.
248
CORNELL JOURNAL OF LAW AND PUBLIC POLICY
B.
[Vol. 17:247
THE LACK OF TRANSPARENCY AND ACCOUNTABILITY
IN THE EXECUTIVE BRANCH .........................
C.
256
ONE-PARTY RULE AND THE LIMITS OF THE
CONGRESSIONAL INVESTIGATIVE FUNCTION ...........
II. A PRESIDENT'S QUESTION TIME? COMPARATIVE
HISTORICAL AND NORMATIVE
CONSIDERATIONS ...................................
A. THE PRIME MINISTER'S QUESTION TIME .............
1. Role of the Prime Minister .....................
2. History of ParliamentaryQuestions .............
3. Development of the Prime Minister's Question
Time ..........................................
B. A PRESIDENT'S QUESTION TIME .....................
1. Accountability and Transparency to Improve the
Function of Government ........................
2. The Role of the House of Representatives .......
III. INFORMATION-SHARING: THE STRUCTURE OF
THE CONSTITUTION AND EARLY PRACTICES .....
A. THE LANGUAGE OF THE CONSTITUTION ..............
B. CHECKS AND BALANCES AS ENVISIONED BY THE
FRAMERS . ..........................................
260
262
264
264
266
267
270
270
277
278
278
280
1. The Desire to Strengthen the Executive Branch .. 281
2. Legislative Tyranny Is Feared but Unrealized ... 285
C.
EARLY EXPERIMENTS WITH INTER-BRANCH
COMMUNICATIONS ................................... 287
IV. INFORMATION-SHARING IN THE MODERN ERA ... 291
CONCLUSION ................................................ 294
"You must first enable the government to control the governed;
and in the next place, oblige it to control itself. A dependence on the
people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."'
INTRODUCTION
The framers of the Constitution premised the separation of powers
and functions on the idea that one branch of governmerit should not be
trusted with too much power. 2 In the first years of government under the
Constitution, the President, Congress and the courts experimented with
ways to communicate and operate government efficiently while also respecting the constitutional separation of powers. 3 Historically, when one
I THE
FEDERALIST No. 51, at 319 (James Madison) (Clinton Rossiter ed., 2003).
2 THE FEDERALIST No. 51 (James Madison).
3 See infra Part III.C.
2008]
THE EXECUTIVE CREDIBILITY GAP
branch of government shifts its mode of operation and the information it
controls, the other branches must adjust to maintain the systemic balance
of government.
The current administration has asserted increased authority over the
flow of information from the executive branch than was previously the
case, has failed to respond to formal and informal queries by members of
Congress, and has attempted to manipulate press coverage favorably
4
while diminishing the information it actually discloses to the media.
Similar criticisms-of a lack of public information, accountability, and
transparency 5 in government-have been directed toward most, if not all,
6
recent U.S. presidents.
This article considers one institutional element used by the United
Kingdom and other democracies to hold their executives accountable and
increase governmental transparency: a periodic opportunity for elected
representatives to pose questions to the leader of the executive branch.
This article asks whether a President's Question Time, in which members of Congress would periodically question the President in person regarding his policies, actions and plans, would be constitutional, or even
desirable.
In analyzing these questions, this article considers the historical and
comparative bases for adopting a measure commonly used in parliamentary government. It also seeks to determine how a President's Question
Time would fit within the range of options that Congress typically uses
to request information from the executive branch.
4 See discussion infra Part I; see also Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2351-53 (2006); Adam M. Samaha,
Government Secrets, ConstitutionalLaw and Platformsfor Judicial Intervention, 53 U.C.L.A.
L. REV. 909, 910, 919 (2006).
5 Governmental accountability and transparency are two of the hallmarks of democratic
nations operating under the rule of law. See generally Michel Rosenfeld, The Rule of Law and
the Legitimacy of ConstitutionalDemocracy, 74 S. CAL. L. REv. 1307 (2001). The manner in
which such objectives are achieved varies significantly, depending on the nature of the system
(e.g., Westminster-style parliamentary system, French system of dual-executive power, U.S.
system of unitary executive). See id. at 1330-37.
6 See MARK J. ROZELL, EXECUTIVE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC AccOUNTABiLITY 42-48 (1994) (outlining twentieth-century legislative-executive tensions over the invocation of executive privilege against legislative inquiries). For discussions
of a perceived concentration of power in the executive branch in various administrations over
the last thirty years, see generally Stephen L. Carter, Comment: The Independent Counsel
Mess, 102 HARV. L. REV. 105 (1988); Cynthia R. Farina, Statutory Interpretation and the
Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989); Saikrishna B.
Prakash, Branches Behaving Badly: The Predictableand Often DesirableConsequences of the
Separation of Powers, 12 CORNELL J.L. & PUB. PoL'Y 543 (2003); Peter W. Shane, When
Inter-BranchNorms Break Down: Of Arms-for-Hostages, "Orderly Shutdowns," Presidential
Impeachments, and Judicial "Coups," 12 CORNELL J.L. & PUB. POL'Y 503 (2003) [hereinafter
Shane, Inter-Branch Norms].
250
CORNELL JOURNAL OF LAW AND PUBLIC POLICY
[Vol. 17:247
Part I looks at the shift in the balance of power among the branches
of the U.S. government over the last 200-plus years and suggests that
increased consolidation of power within the control of the executive
branch has redefined the careful structural separations and balances established by framers of the U.S. Constitution who believed in divided
governmental power. Part I also analyzes the current lack of transparency and accountability of the executive branch and addresses how
these issues are amplified when one political party controls both the executive and legislative branches of government.
Part II considers as a comparative model the political history of the
United Kingdom, including the increase in executive power of the Prime
Minister, that led to the establishment of a Prime Minister's Question
Time in that country.
Part III examines the U.S. framers' deliberate institutionalization of
a low level of presidential responsiveness to Congress and the public and
discusses the framers' expectation that the Legislature was likely to dominate and coerce both the executive and the judicial branches of government. Their concern that the President and Judiciary would need support
in the face of legislative bullying served as the backdrop for requiring a
low level of executive accountability to the Legislature. That view did
not anticipate the ability of the President to control legislators within his
own party and garner power through the administrative departments.
Part III also considers early experiments in inter-branch communications
within the government, including instances in which President George
Washington appeared before Congress to answer questions about executive branch activity.
Finally, Part IV addresses the right of the Legislature to seek information from the Executive. An examination of various legislative measures toward increased oversight of the executive branch sheds some
light on the constitutionality of instituting a President's Question Time.
I. NO EFFICIENT CHECK ON AN INCREASINGLY
POWERFUL EXECUTIVE BRANCH
The institutions of American government were designed so that
each branch of government would act as a "co-equal" in its powers and
functions, 7 and that ongoing competition among the branches of government would keep each of them in check. 8 Under the model of divided
government advanced by James Madison, "ambition would counteract
7 See THE FEDERALIST Nos. 48, 51 (James Madison); see also Levinson & Pildes, supra
note 4, at 2312.
8 See THE FEDERALIST No. 51 (James Madison); see also Levinson & Pildes, supra note
4, at 2312.
2008]
THE EXECUTIVE CREDIBILITY GAP
ambition,"9 keeping the Executive, Legislature, and Judiciary exercising
their proper functions-no more and no less.
When the executive branch asserts additional rights or powers for
the President, Congress has the right and the obligation to exert pressure
and provide oversight on the Presidency in order to maintain this balance
among co-equals. History, however, has demonstrated major vulnerabilities of the Madisonian vision: a steady increase in the powers and functions asserted by the executive branch, including the level of control that
the executive branch has been able to assert over Congress at any given
time; and the unwillingness of Congress, at times, to challenge presidential policy, demand information and transparency from the executive
branch, and generally exercise its constitutionally-mandated oversight
role. 10
Here lies the problem: Congress's will and ability to maintain its
independence from executive branch interests and exercise its oversight
role-to demand information, initiate investigations or raise the specter
of impeachment-requires the will of the majority party in Congress."I
When Congress chooses not to exercise these rights, presidential conduct-which may result in bad policy decisions, overreaching into the
purview of other branches of government, or constitutionally suspect infringements on individual rights-remains unchallenged and opaque to
the public and other branches of government.
In times of divided government, in which at least one chamber of
Congress is controlled by a different political party than the President,
the likelihood that Congress will act in accord with the Madisonian assumption of balanced branches working against each other as co-equals
increases dramatically.1 2 When, however, unified government is in place
(i.e., the President and both chambers of Congress are controlled by the
same political party), 13 Congress's efficacy as a limitation on the aggregation of presidential power via legislation or investigation diminishes
9 See THE FEDERALIST No. 51 (James Madison).
10 See Farina, supra note 6, at 508; Levinson & Pildes, supra note 4, at 2316-17.
11 See Levinson & Pildes, supra note 4, at 2313 (noting that "[p]olitical competition and
cooperation along relatively stable lines of policy and ideological disagreement quickly came
to be channeled not through the branches of government, but rather through . . . political
parties").
12 Levinson & Pildes, supra note 4, at 2371 (citing JOEL D. ABERBACH, KEEPING A
59-75 (1990)) (concluding that
congressional committees exercised over 26% more oversight in times of divided government
than unified government between 1961 and 1977). Levinson and Pildes use a straightforward
majority to assess whether a party is able to exert control in the legislature. Id. at 2368-71.
13 This is sometimes referred to as "full authority" government. See Bruce Ackerman,
The New Separation of Powers, 113 HARV. L. REV. 633, 648 (2000).
WATCHFUL EYE: THE POLITICS OF CONGRESSIONAL OVERSIGHT
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CORNELL JOURNAL OF LAW AND PUBLIC POLICY
[Vol. 17:247
tremendously, due largely to the power of political party loyalty and
14
discipline.
In times of unified government, when Congress chooses not to exercise its oversight responsibilities, the available recourse against presidential overreaching is inefficient at best. The public is left to rely on the
democratic process to elect a different president or a Congress with
greater muscle in exercising oversight and demanding information from
a president. Or the public can generate direct political pressure on Congress to initiate information requests, investigations or impeachment proceedings. Marshalling such political will is often a difficult feat if
presidential decision-making is opaque and influential members of Congress belonging to the President's own political party are unwilling to
5
break ranks, even in the face of public pressure.'
A.
CONSOLIDATION OF POWER IN THE EXECUTIVE BRANCH
Madison, at the time the Constitution was framed, valued the tension between the executive and legislative branch as essential to the
functioning of government. The actions (or inaction) of the branches,
however, eventually redefined the spheres of power in favor of the executive branch. The history of the removal power and its cemented position within the executive branch is one example of actions that
consolidated power in the presidency over time,' 6 and it exemplifies the
fact that the carefully structured model of divided and balanced branches
of government that Madison eloquently defended in his FederalistNo.
5117 was tinkered with from very early on.
During the first Congress in 1789, Congress debated whether the
President had the unilateral right to remove members of the administration who had been appointed with the consent of the Senate.' 8 Propo14 Levinson & Pildes, supra note 4, at 2334-37; see also SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 66 (2006).
15 DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS 121-62 (1999).
16 Naturally, proponents of a more powerful executive argue the converse-that the legislative and judicial branches have been attempting a power grab from early times in U.S.
history. See, e.g., Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for
Foreign Affairs. Deference to the Executive Branch, 23 CONST. COMMENT. 179, 195-202
(Summer 2006); cf. Marbury v. Madison, 5 U.S. 137 (1803) (establishing judicial review of
some executive branch actions over the argument by the executive branch that the Judiciary
had no right to pass judgment on executive branch actions).
17 THE FEDERALIST No. 51 (James Madison).
18 Kent Greenfield, OriginalPenumbras: ConstitutionalInterpretationsin the First Year
of Congress, 26 CONN. L. REV. 79, 100-01 (1993) (citing II DOCUMENTARY HISTORY OF THE
FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: DEBATES IN THE HOUSE OF
REPRESENTATIVES 843 (Charlene Bangs Bickford et al. eds., 1992)); see also Saikrishna
Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1041-63 (2006)
(detailing the thinking of the first Congress on the passage of the Foreign Affairs Act that
allowed for the construction of the removal power being vested in the President).
2008]
THE EXECUTIVE CREDIBILITY GAP
nents of the view that the Senate needed to acquiesce to such removal
cited the language of the Constitution itself and documents such as the
FederalistNo. 77.19 In that essay, Alexander Hamilton reassured a public wary of a potential monarchy that Presidential power over the administration of government would be limited by, among other measures, the
fact that the President would not have the right to remove those officers
of the executive branch who had been appointed with the consent of the
Senate. 20 Congress, however, decided during the first Congress that the
President could remove executive officers without the consent of the
21
Senate.
Myers v. United States and Bowsher v. Synar are both twentiethcentury cases testing the constitutionality of legislative initiatives allowing for Congress to remove an official who was, at least in some part,
performing executive branch responsibilities. 22 In both cases, the Supreme Court unequivocally stated that the removal power falls wholly
within the ambit of executive power, broadly validating the shift in removal power that had occurred in 1789.23
In addition to outright shifts in power, like that of the removal
power, the growth of the administrative departments accelerated the ex24
ecutive branch's reach and power into the New Deal era and beyond.
The framers of the Constitution did not foresee the shift of law-making
power away from the Legislature and into the departments run by the
25
executive branch.
19 See Greenfield, supra note 18, at 100-01.
20 THE FEDERALIST
21
No. 77, at 458 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
Greenfield, supra note 18, at 100-01; see also Gerhard Casper, The American Consti-
tutional Tradition of Shared and Separated Powers: An Essay in Separation of Powers, 30
WM. & MARY L. REv. 211, 234-35 (1989) (noting that James Madison lobbied for the removal power to be vested in the President to prevent intermingling between the legislative and
executive branches, which was a marked departure from the stance taken by his co-author of
the Federalist Papers, Alexander Hamilton).
22 Bowsher v. Synar, 478 U.S. 714 (1986); Myers v. United States, 272 U.S. 52 (1926).
23 See Bowsher, 478 U.S. at 726 ("Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment."); Myers,
272 U.S. at 160-63 (invalidating Congress's attempt to involve itself in the removal of an
executive official based on separation of powers grounds).
24 See Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1819-21
(1996); Gary Lawson, The Rise and Rise of the AdministrativeState, 107 HARV. L. REV. 1231,
1237-41 (1994); Peter W. Shane, PoliticalAccountability in a System of Checks and Balances: The Case of PresidentialReview of Rulemaking, 48 ARK. L. REV. 161, 162-65 (1995)
[hereinafter Shane, Political Accountability]; see also Charles Tiefer, The Constitutionalityof
Independent Officers as Checks on Abuses of Executive Power, 63 B.U. L. REV. 59, 70-71
(1983) (noting that the Constitution makes reference to the existence of government departments, but is silent as to how the departments relate to the President or Congress).
25 See Farina, supra note 6, at 508; Michael Zuckerman, Charles Beard and the Consti-
tution: The Uses of Enchantment, 56 GEO.
WASH.
L. REv. 81, 84-85 (1987).
254
CORNELL JOURNAL OF LAW AND PUBLIC POLICY
[Vol. 17:247
This reach gained momentum with the advent of the Cold War and a
political worldview governed by the philosophy of the Truman Doctrine.
After World War H, the United States became increasingly concerned
with strengthening the executive branch to deal with the national security
issues that arose with its ascendancy as a newly dominant force in terms
of its economic and political clout.26 This new reality led to an increase
in Congress's willingness to cede certain powers to the President, particularly in the area of foreign relations. 27 This trend has continued during
28
almost every administration since that time.
This consolidation of power was temporarily slowed by a massive
drop in support for the presidency during the Vietnam War and after the
revelation of the Watergate scandal. 29 In the mid-1970s, as a response to
this credibility gap between the administration and the public, numerous
oversight measures increased accountability and transparency in government. Among these were the creation of the independent counsel, 30 the
enactment of the War Powers Resolution, 3' the strengthening of the General Accounting Office, 32 and the passage of the Freedom of Information
Act.
33
However, some of these measures, such as the independent counsel
statute, have lost popularity and have been allowed to expire. 34 For
others, the executive branch has been able to circumvent many of the
controls that were intended to curb executive excess. 35 Additionally,
laws such as the Foreign Intelligence Surveillance Act (FISA), which
26 Zuckerman, supra note 25, at 83-84.
27 See Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the
Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1014-15 (2004); see also Zuckerman, supra
note 25, at 83-84.
28 Zuckerman, supra note 25, at 87-88 (discussing President Kennedy's penchant for
circumventing the legislative process by issuing executive orders).
29 Id. at 88-89.
30 Ethics in Government Act, 28 U.S.C. § 595 (2000).
31 War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555.
32 See Budget and Accounting Act of 1921, Pub. L. No. 67-13, 42 Stat. 20.
33 5 U.S.C. § 552 (2000 & Supp. 2004) (amended 2002).
34 The statute most recently authorizing the independent counsel, the Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732, expired on June 30,
1999.
35 For example, no President has ever formally acknowledged that his actions should be
governed by the War Powers Resolution. See RICHARD F. GRIMMETT, CONGRESSIONAL RESEARCH SERVICE, WAR POWERS RESOLUTION: PRESIDENTIAL COMPLIANCE 5 (2007), http://
www.au.af.millau/awc/awcgate/crs/rl33532.pdf. Additionally, the Government Accountability
Office (GAO) offers recommendations on the performance and accountability of various government programs, but those recommendations are non-binding: according to the GAO, approximately 85% of its recommendations from the year 2001 had been implemented by 2005.
See U.S. Gov't Accountability Office, GAO at a Glance, http://www.gao.gov/about/gglance.
html (last visited Jan. 9, 2008). Finally, presidents can prevent public access to documents
under the Freedom of Information Act by designating documents as "classified." 5 U.S.C.
§ 552(b) (2000).
2008]
THE EXECUTIVE CREDIBILITY GAP
was designed as a judicial check on warrantless surveillance, have faced
significant challenges from presidents seeking greater latitude and discre36
tion in conducting such surveillance in the post-Cold War era.
In addition, the departments under the control of the executive
branch have been increasingly insulated from legislative or judicial review. 37 Recent administrations have pushed for less congressional oversight of agencies. 38 At the same time, the gradual reduction of
Congress's influence in the arena of foreign policy 39 and the refusal to
4°
cooperate with congressional investigations of executive branch actions
have further insulated the executive branch from oversight.
The White House reaction to the terrorist attacks of September 11,
2001, intensified concerns that the separation of functions among the
branches of government was being abrogated. The President undertook
several major initiatives to consolidate additional power in the executive
branch in the name of national security, executive privilege, or expediency, at the expense of meaningful input by other branches of govern4
ment. Such initiatives include limitations to habeas corpus rights, '
36 See Foreign Intelligence Surveillance Act, Pub. L. No. 95-511, §§ 101-111, 92 Stat.
1783, 1783-96 (1978) (codified as amended at 50 U.S.C. §§ 1801-1811 (2000)); see also
Trevor Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV.
1189, 1250-58 (2006) (noting the executive branch's use of constitutional avoidance theory to
assert its right to circumvent the parameters of FISA).
37 See Farina, supra note 6, at 503-04 (discussing the ways in which the President can
influence the decision-making of agency heads to further his own agenda); Shane, Political
Accountability, supra note 24, at 162 (noting the trend toward confidentiality in the dealings
between the White House and various administrative agencies); Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 447 (1987) (discussing the burgeoning
of the administrative state after the New Deal, and how the administrative departments are not
properly held to account by the President or by anyone else); Zuckerman, supra note 25, at 95
(noting that constitutional checks and balances have not been effective in regulating and controlling administrative agencies).
38 See, e.g., Farina, supra note 6, at 506-07 (noting that the Office of Management and
Budget has become a vehicle for imposing presidential policy on various agencies, but has
"escaped any meaningful legislative curb on its activities"); Tiefer, supra note 24, at 60-61
(discussing how the Department of Justice challenged the legislative oversight measures that
had been enacted in the wake of the Watergate scandal).
39 See HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER
AFTER THE IRAN-CONTRA AFFAIR 67-69 (1990); Shane, Inter-Branch Norms, supra note 6, at
514.
40 Shane, Inter-Branch Norms, supra note 6, at 514-15 (discussing the false testimony
given by various members of the Reagan administration during the Iran-Contra hearings).
41 See Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2786 (2006) (holding that the military tribunal system used for the Guantanamo Bay detainees violated the Uniform Code of Military
Justice and the Geneva Conventions); Hamdi v. Rumsfeld, 542 U.S. 507, 517, 533 (2004)
(affirming the government's right to detain unlawful combatants but recognizing that U.S.
citizens have habeas corpus rights).
256
CORNELL JOURNAL OF LAW AND PUBLIC POLICY
human rights litigation, 42 and individual
whether these measures were necessary
marked lack of basic information about
ther insulated administrative policies and
cial review.
B.
[Vol. 17:247
privacy rights. 43 Regardless of
to fight the war on terror, the
executive branch practices furactions from legislative or judi-
THE LACK OF TRANSPARENCY AND ACCOUNTABILITY IN THE
EXECUTIVE BRANCH
In addition to shifting power away from Congress, recent administrations have also successfully manipulated the public's access to executive branch information through two primary means: limiting the amount
of information that it discloses to other branches of government and the
public; and influencing press coverage.
The current Administration has limited information disclosure in response to inquiries from other parts of the government in numerous
ways, each of which is a small step in aggregating political power within
the executive branch. Some instances relate to the Administration's efforts in the war on terror, which arguably offers a heightened justification
for nondisclosure. 44 For example, the White House prevented an official
inquiry into the accuracy of U.S. intelligence on Iraq's weapons programs, which had been offered as the primary justification for the invasion of Iraq;45 President Bush refused to respond to a May 2005 letter,
signed by over 100 members of Congress, 46 asking questions about the
42 See Beth Stephens, Upsetting Checks and Balances: The Bush Administration's Efforts to Limit Human Rights Litigation, 17 HARV. HUM. RTS. J. 169, 182 (2004) (documenting
the attempts of the George W. Bush administration to curtail judicial review in cases of alleged
human rights violations by the U.S. government).
43 The Bush Administration instructed the National Security Agency (NSA) to conduct
civilian wiretapping without undergoing the process required by the Foreign Intelligence Surveillance Act (FISA), which requires a post hoc authorization of wiretapping by a judge. 50
U.S.C. §§ 1801-1862 (2000 & Supp. II 2004); U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES
SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESI-
4-5, 18-20 (2006). The administration maintains that it had the authority to circumvent
FISA under the Authorization to Use Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
See U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE AcrTvrrnEs OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 17-28 (2006); see also Patricia
Mell, Big Brother at the Door: Balancing National Security with Privacy Under the USA
PATRIOTAct, 80 DENVER U. L. REV. 375, 379-80 (2002) (addressing the effects of the Patriot
Act on individual privacy rights).
44 See KOH, supra note 39, at 38-72 (1990) (noting marked deference to executive
branch in times of war and contrasting it with the need for openness in times of war to protect
the rule of law); Charles E. Schumer, Under Attack: CongressionalPower in the Twenty-First
Century, I HARV. L. & POL'Y REV. 3, 15-16 (2007) (arguing for more congressional oversight
in times of war, and citing the oversight work of the Truman Committee on military spending
in the 1940s).
45 Paul Krugman, Op-Ed., The War President, N.Y. TIMES, June 24, 2005, at A23.
46 Inquiry Sought on PrewarMemo; Questions Swirl Around Document, SAN JOSE MERDENT
CURY NEWS, June 17, 2005, at 14A.
2008]
THE EXECUTIVE CREDIBILITY GAP
Downing Street Memo; 47 and the President refused to appear before the
September 11 Commission unless accompanied by Vice President Cheney, assured that no transcript would be made of the interview, and
promised that the public release of the finalized report was contingent on
48
White House review.
Other examples of the current Administration's nondisclosure are
unrelated or have only an attenuated connection to the war on terror: the
White House refused to provide the Senate with documents regarding
John Bolton during the proceedings to confirm Bolton as United Nations
ambassador despite the long-standing practice granting senators access to
such papers prior to voting on nominations;4 9 Vice President Cheney refused to turn over documents to the Government Accountability Office
(GAO) related to a White House energy task force in which he participated in 2000 and 2001, impeding the GAO from overseeing the executive branch. 50 In his refusal, Cheney asserted that his activities related to
those of the executive branch and implied that he could exercise executive privilege under the Recommendations Clause. 5 1 In another example,
the White House labeled a record number of documents "classified" to
47 The Downing Street Memo is a memorandum detailing a July 23, 2002 meeting between Prime Minister Tony Blair and his national security team. According to its contents, one
official at the meeting warned, "[Military] action was now seen as inevitable. Bush wanted to
remove Saddam, through military action, justified by the conjunction of terrorism and WMD
[weapons of mass destruction] . . . the intelligence and facts were being fixed around the
policy." Michael Smith, Blair PlannedIraq War from the Start, THE TIMES (London), May 1,
2005, at 7.
48 See John King & Sean Loughlin, Bush, Cheney Meet with 9/11 Panel, CNN.coM, Apr.
30, 2004, http://www.cnn.com/2004/ALLPOLITICS/04/29/bush.91 .commission.
49 Andrea Koppel, Democrats Force Delay on Bolton Vote, CNN.coM, May 27, 2005,
http://www.cnn.com/2005/POLITICS/05/26/bolton.senate/index.html
(quoting Senators Joseph Biden (D-Delaware) and Christopher Dodd (D-Connecticut) remarks that the Administration's refusal to provide the requested documents constituted "a threat to the Senate's
constitutional power to advise and consent"); Reid: No Documents, No Bolton, CNN.coM,
June 9, 2005, http://www.cnn.com2005/POLITICS/06/09/senate.bolton/index.html
(citing
Senate minority leader Harry Reid (D-Nevada) as saying that the Senate Democrats' requests
for information about Bolton were of the type that had been routinely made for "decades").
50 See Walker v. Cheney, 230 F. Supp. 2d 51, 54-55 (D.D.C. 2002). In the statement
accompanying the filing of its suit against Vice President Cheney, the Government Accountability Office (GAO) noted: "This is the first time that GAO has filed suit against a federal
official in connection with a records access issue. We take this step reluctantly. Nevertheless,
given GAO's responsibility to Congress and the American people, we have no other choice.
Our repeated attempts to reach a reasonable accommodation on this matter have not been
successful." Press Release, U.S. Gen. Acct. Off., GAO Statement Concerning Litigation (Feb.
22, 2002), availableat http://www.democrats.reform.house.gov/Documents/2004083015354962303.pdf.
51 Ultimately, the U.S. Commerce Department was required to release some redacted
material from the task force to the public after the issuance of a court order enforcing a Freedom of Information Act request for the documents. See Judicial Watch Inc. v. U.S. Dep't. of
Energy, 191 F. Supp. 2d 138, 141 (D.D.C. 2002).
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immunize them from Freedom of Information Act (FOIA) requests,
52
and rolled back the Clinton Administration policy of encouraging
53
broader and faster disclosure in response to FOIA requests.
The executive branch compounds its failure to disclose information
by attempting to manipulate the press into providing a favorable portrayal, undermining the media's role in increasing transparency of the
political process and governmental institutions. An illustrative example
was the creation and dissemination of "video news releases" by the government-pro-administration segments which looked similar to actual
news reports. The GAO found that these violated the government's own
policies because they "constitute covert propaganda. ' 54 Further, the
President's public appearances are carefully controlled to weed out those
who might disagree with his policies, creating an impression that little
55
media or public opposition exists to administration policies.
52 See, e.g., Christopher Lee, Cold War Missiles Target of Blackout, WASH. POST, Aug.
21, 2006, at Al.
53 Compare Memorandum from John Ashcroft, Attorney General, on the Freedom of
Information Act to the Heads of all Federal Departments and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/oip/011012.htm (stating that "[wihen you carefully consider
FOIA requests and decide to withhold records, in whole or in part, you can be assured that the
Department of Justice will defend your decisions unless they lack a sound legal basis"), with
Memorandum from Janet Reno, Attorney General, on the Freedom of Information Act to the
Heads of Departments and Agencies (Oct. 4, 1993), available at http://www.usdoj.gov/oip/foia
_updates/VolXIV_3/page3.htm (noting that "[t]he Department [of Justice] will no longer defend an agency's withholding of information merely because there is a 'substantial legal basis'
for doing so. Rather, in determining whether or not to defend nondisclosure decisions, we will
apply a presumption of disclosure"). In March 2002, the House of Representatives responded
to Ashcroft's memorandum with a strong statement advocating the presumption of disclosure:
"Contrary to the instructions issued by the Department of Justice on Oct. 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a 'sound
legal basis' for doing so." COMM. ON GOV'T REFORM, A CITIZEN'S GUIDE ON USING THE
AcT OF 1974 TO REQUEST GOVERNMENT
RECORDS, H.R. REP. No. 107-371, pt. I, at 3 (2002).
54 Memorandum of Anthony H. Gamboa, General Counsel, U.S. Government Accountability Office, on the Office of National Drug Control Policy Video News Release to Henry A.
Waxman, Committee on Government Reform, and John W. Olver, Subcommittee on Transortation, Treasury and Indpendent Agnecies and Committee on Appropriations I (Jan. 4,
2005), available at http://www.gao.gov/decisions/appro/303495.pdf.
55 See Dana Milbank, The Tenacious Trio, WASH. POST, June 22, 2005, at Al0 (following the attempts of three Coloradoans who disagreed with the President's policies to determine
who impersonated a Secret Service agent and forcibly removed them from a taxpayer-funded
event with President Bush); Frank Rich, Editorial, Two Top Guns Shoot Blanks, N.Y. TIMES,
June 19, 2005, at 12 (discussing the pre-scripted "Ask the President" town-hall style campaign
stops in which any potentially hostile questioner was either denied admittance or removed
from the venue); see also Shane, PoliticalAccountability, supra note 24, at 207-08 (discussing
the ability of a President to dissociate from politically unpopular actions of an agency when it
is convenient to do so, or to embrace those actions when speaking to audiences who support
the agency's actions). At other times, President Bush has responded to potentially difficult or
damaging questions by refusing to answer the query, or to ignore the reporter asking the question. See, e.g., Rachel Clarke, How Bush Shuns the Media, BBC NEWS, July 30, 2003, http://
www.news.bbc.co.ukl2/hi/americas/3110591 .stm; Peter Johnson, Bush Has Media Walking a
FREEDOM OF INFORMATION ACT AND THE PRIVACY
2008]
THE EXECUTIVE CREDIBILITY GAP
Each of these shifts in policy or practice, taken individually, may
seem insignificant. Together, however, they paint a picture of a major
shift in the disclosure practices of the Administration on both the defensive and offensive fronts. Defensively, the Administration curbs the provision of information to Congress and limits the release of documents in
response to FOIA requests. Offensively, unless information has already
been disclosed, the Administration looks to influence the media and public perception through conventional and unconventional means.
The manipulation of information disclosure extends beyond the current administration, 56 and has not been effectively combated by the
press. 57 The President, under most circumstances, is under no constitutional or legal obligation to volunteer information to the press. However,
the media's perceived role as an informal "fourth branch" of government, 5 8 exercising a watchdog function particularly over the executive
59
branch, is severely compromised under such circumstances.
The consolidation of power in the executive branch unbalances the
constitutional model of co-equal branches of government. The inability
of the media to consistently unearth information and documents for public scrutiny compounds this problem. Consequently, without vigorous
action on the part of Congress to exercise its constitutional powers, the
executive branch is able to take actions that are largely unpublicized and
unchecked. Regardless of which political party holds power in the White
Fine Line, USA TODAY, Mar. 10, 2003, at 3D, available at http://www.usatoday.com/life/
television/news/2003-03-09-media-mixx.htm.
56 See Zuckerman, supra note 25, at 89-90 (noting the problem of misinformation disseminated to the press during the Iran-Contra investigations).
57 See MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 20-21 (2003) (arguing that
the media's efficacy at bringing important issues to light is curtailed by pressure to provide
entertaining sound bites to gain market share, and that the media's role as a neutral arbiter is
compromised by its need to further its own interests).
58 DOUGLASS CATER, THE FOURTH BRANCH OF GOVERNMENT 13 (1959) (describing the
power of the media in evaluating the actions of government). The media can exercise significant influence on voters, thereby giving the media a substantial role in outcome of the democratic process. See, e.g., Linda Hirschman, 16 Ways of Looking at a Female Voter, N.Y.
TIMES MAGAZINE, Feb. 3, 2008, at 38, available at http://www.nytimes.coml2008/02/03/magazine/03womenvoters-t.html ?pagewanted= I &sq=media%20influence%20vote&st=nyt&scp=2
(addressing how media coverage of the 2008 Democratic Party primaries likely influenced
some women voters in New Hampshire).
59 E.g., Steve Urbon, Kerry Assails Bush on Iraq: Policies on Social Security, Health
CareAlso Draw Fire, THE STANDARD TIMES, June 2, 2005, at Al, available at http://archive.
southcoasttoday.com/daily/06-05/06-06-05/aOilot 67.htm (noting the "near silence in the U.S.
mass media" over the Downing Street memo); Patrick D. Healy, Senator Clinton Assails Bush
and G.O.P. at Campaign Fund-Raiser, N.Y. TIMES, June 6, 2005, at BI (quoting Senator
Hillary Rodham Clinton (D-New York) as comparing the press corps in the Watergate era to
modem reporters: "The press is missing in action .... Where are the investigative reporters
today? Why aren't they asking the hard questions? . . . If they're criticized by the White
House, they just fall apart.").
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House, this situation poses a major systemic challenge which becomes
even more problematic in the case of unified government.
C.
ONE-PARTY RULE AND THE LIMITS OF THE CONGRESSIONAL
INVESTIGATIVE FUNCTION
Congress's will to exercise its power as the "Grand Inquest" 60 of
government that combats executive overreaching is badly impaired in
times of one-party or unified government. Congress's will to make a
formal demand for information or initiate investigations 61 depends on
individual members of Congress, particularly the committee chairs
within the House of Representatives. 62 In the original Madisonian conception of American governmental institutions, political parties would
not have influence over politicians, thereby enabling representatives to
initiate inquiries and investigations without being hindered by party pressure. 63 The modern reality 64 is quite different: committee chairmanships
60 RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 34 (Harv. Univ.
Press 1974) (denoting the House of Representatives as the "grand inquest" based on its investigative powers and its right to demand information from the President under Article I, § 2); see
also AKHIL REED AMAR, AMERICA'S CONSTITUTION 111(2005) (noting that "Article I ...
implicitedly [sic] gave each house of Congress broad powers of investigation and oversight...
that were necessary and proper adjuncts to Congress's enumerated powers").
61 The common construction of Article II, § 4, is that Congress's impeachment power
implies that Congress has an unambiguous right to make inquiries of the Executive branch as a
means of determining whether an impeachable offense has occurred. See BERGER, supra note
60, at 36-37, 41 (citing an 1843 House of Representatives report and an 1860 House of Representatives report to this effect).
62 H.R. XI(2)(m)(3)(A)(i), 10th Cong. (1997).
63 See RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE
OPPOSITION IN THE UNITED STATES, 1780-1840, at 40 (1969); GERALD LEONARD, THE INVEN-
OF PARTY POLITICS 18-50 (2002); Levinson & Pildes, supra note 4, at 2314-15 (noting
that, contrary to the pre-ratification Madisonian vision of the branches of government working
independent of outside influences, the functional reality of the separation of powers is that
their efficacy is compromised by the strength of political parties). Madison's ideal of a political system without parties did not last. Within a few years of ratification, Madison's views on
political parties shifted dramatically, and he became a central figure in the creation of the First
Party System. See LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE
FOUNDING OF THE FEDERAL REPUBLIC 351-63 (1995); STANLEY ELKINS & ERIC McKrIRICK,
THE AGE OF FEDERALISM 263-70 (1993).
64 Justice Jackson, in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952), opined on the effect of political parties on the structural limitations placed on
TION
the President:
[The] rise of the party system has made a significant extraconstitutional supplement
to real executive power. No appraisal of his necessities is realistic which overlooks
that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of
government other than his own and he may often win, as a political leader, what he
cannot command under the Constitution.
Id. at 654.
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THE EXECUTIVE CREDIBILITY GAP
are awarded to representatives that are members of the political party that
65
holds the majority of the House and who show party loyalty.
In times of unified government, genuine oversight is limited to the
extent that Congressional leadership is willing to investigate its own national party leader. 66 When committee chairs are unwilling to buck the
67
political pressure exerted by a president of the same political party,
formal and meaningful investigation has to wait until a shift in control of
a chamber of Congress. 65 The number and nature of inquiries made by
Congress turns on which party governs each chamber of Congress and
the presidency, 6 9 thereby marginalizing, in times of unified government,
the ability of the House of Representatives to provide meaningful
70
oversight.
supra note 57, at 18-19; see also W. IVOR JENNINGS, THE BRITISH CONSTI66 (5th ed. 1966) (recognizing that party discipline is of paramount importance in
parliamentary governments); Patricia Wald & Neil Kinkopf, Putting Separation of Powers into
Practice: Reflections on Senator Schumer's Essay, I HARV. L. & POL'Y REV. 41, 44-45
(2007) (noting that political parties are more ideologically polarized than in previous eras).
66 See George C. Edwards III & Andrew Barrett, PresidentialAgenda Setting in Congress, in POLARIZED POLITICS 109, 112-16 (Jon R. Bond & Richard Fleischer eds., 2000);
Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 HARV. L. REV.
2673, 2679 (2005) (noting that under unified government, Congress tends to support the President without questioning the wisdom of his policies); Interview by Michele Norris with Rep.
Henry Waxman, then chair-elect to the House Government Reform Committee, in Washington, D.C. (Nov. 15, 2006), available at http://www.npr.org/templates/story/story.php?storyld=
6493071 (noting that he had requested Republican committee chairs to launch investigations of
President George W. Bush's administration on numerous occasions between 2001 and 2006,
when Bush was President and both chambers of Congress had Republican majorities. Waxman states that his requests had been denied, and he had no further recourse); see also James
Glanz et al., Democrats Aim to Save Inquiry on Work in Iraq, N.Y. TIMES, Nov. 12, 2006, §1,
at I1, available at http://www.nytimes.com/2006/l 1/12/washington/I 2oversight.html?ei=5070
&en=5050e4.
67 In rare instances, a minority party in Congress has exerted enough political pressure
on majority leaders to heighten or maintain oversight. One such example is the Senate Intelligence Committee's completion of its investigation into the flawed intelligence that was reported in the National Intelligence Estimate of 2002. See Wald & Kinkopf, supra note 65, at
48. The completion of the Intelligence Committee's work only occurred after Senate Democrats threatened to stall business on the Senate floor. See id.
68 See, e.g., ROZELL, supra note 6, at 6 (addressing the lack of investigations of President
Clinton while Democrats controlled both chambers of Congress from 1992 to 1994); Kristin
Roberts, Rumsfeld Quits After Democrats Ride Iraq to Win, POLITICAL NEWS, Nov. 8, 2006,
http://www.political-news.org/breaking/32490/rumsfeld-quits-after-democrats-ide-iraq-towin.html (noting that the new-found Democratic right to initiate investigations may have been
one reason that Secretary Rumsfeld resigned his post).
69 See JOEL D. ABERBACH, KEEPING A WATCHFUL EYE: THE POLITICS OF CONGRESSIONAL OVERSIGHT 59-75 (1990) (noting that congressional committees exercise significantly
more oversight during times of divided government than unified government); see also Levinson & Pildes, supra note 4, at 2371.
70 See BERGER, supra note 60, at 35; Wald & Kinkopf, supra note 65, at 47 (comparing
the number of House oversight hearings in early 1983 and 1997 and highlighting the drastic
system-wide decline in oversight); Stanley Brand, Op-Ed., Let the Investigations Begin, N.Y.
TIMES, Nov. 12, 2006, § 4, at 13, available at http://www.nytimes.com/2006/l 1/12/opinion/12
65
TtI1ON
TUSHNET,
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One alternative, formal way to demand information from the executive branch is for Congress to initiate impeachment proceedings. 71 This
course of action is problematic in two ways. First, the same lack of political will that derails an investigation or formal information request will
cause inertia in the context of discussing impeachment. Second, initiation of impeachment proceedings immediately alters the context of the
dialogue to one that focuses on potential criminality, rather than the
72
question of good government policy.
The combination of an executive branch that has aggregated powers
and limited disclosure of information, with the political limitations of
congressional action in times of unified government, 73 has created an
information and credibility gap that needs to be addressed. Part II argues
that these problems are best addressed through the addition of an institutional design element that is common in parliamentary systems.
II.
A PRESIDENT'S QUESTION TIME? COMPARATIVE
HISTORICAL AND NORMATIVE CONSIDERATIONS
While every constitutional nation has taken up the question of executive accountability, their various solutions reflect numerous differences-in the structures of government, cultural expectations of
Brand.html?ei=5070&en=d68010ea6324 (noting that after the shift in Congressional power
toward the Democrats in the 2006 midterm election, "[a] vigorous examination of the administration's conduct.., is the politically necessary response to voters' overwhelming rejection of
the current Congress's failure to assert itself in this area"); Editorial, Hidingfrom Oversight,
N.Y. TIMES, Nov. 13, 2006, at A24, availableat http://www.nytimes.com/2006/11/13/opinion/
13mon2.html ("There have been many examples of the shambles that the Republican-controlled Congress made of its responsibility for oversight in the Bush administration."); Carl
Hulse, On Wave of Voter Unrest, Democrats Take Control of House, N.Y. TIMES, Nov. 8,
2006, at P2, available at http://www.nytimes.com/2006/11/08/us/politics/08house.html?page
wanted=print ("Democrats have complained for years that Republicans have ignored their responsibility as an independent branch of government to police the executive branch."); Robin
Toner, A Loud Message for Bush, N.Y. TIMES, Nov. 8, 2006, at A1, availableat http://www.
nytimes.com/2006/11/08/us/politics/08assess.html?ei=5094&en=654cbccf9b7 (recognizing "a
significantly bigger Democratic caucus in the Senate that was elected on the promise to act as
a strong check on [the] administration.").
71 U.S. CONST. art. I, § 2, cl.4.
72 See Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting) (arguing that
the office of the independent counsel enfeebles the President by contextualizing the discussion
around whether the President is "not merely wrongheaded, naive, ineffective, but, in all
probability, '[a] crook[ ]'"); Carter, supra note 6, at 139 (arguing that independent counsel
investigations lower the public's standard of what is acceptable behavior in the executive
branch to the question of whether certain activity was illegal, as opposed to whether "the
executive branch performs with dignity and propriety.").
73 Different levels of oversight activity have occurred during different periods of unified
government. See, e.g., Schumer, supra note 44, at 9 (noting that the House Government Reform Committee conducted 135 hearings during the 1993-1994 session and only 37 during the
2003-2004 session).
2008]
THE EXECUTIVE CREDIBILITY GAP
information-sharing, and institutionalized rights to governmental
transparency.
74
The Prime Minister's Question Time (Question Time) in the United
Kingdom, which takes place for half an hour each week that the House of
76
Commons is in session, 75 provides a compelling comparative example.
The Prime Minister maintains this weekly appointment with the House of
Commons to field a number of questions from leaders of the major opposition parties and other Members of Parliament (MPs) belonging to various political parties. 77 A periodic President's Question Time in the
United States, although likely occurring less frequently than the U.K.
Question Time, would serve to alleviate some of the information deficit
between the executive branch and the Legislature, particularly when that
78
deficit is exacerbated in times of unified government.
A brief overview of the history, purpose and mechanics of the Prime
Minister's Question Time provides some context for why a similar measure might be appropriate and useful to increase government accountability in the United States, particularly given the increasing parallels found
in the roles of the U.S. President and the U.K. Prime Minister. 79
74 For example, Russia has experimented with an annual "Question Time" in which the
President spends an hour responding to questions asked by members of the public via the
President's website. See Kieren McCarthy, Putin 'Bares All' in First Russian President Webcast, THE REGISTER, Mar. 7, 2001, http://www.theregister.co.uk/2001/03/07/putinbaresallin
_first/; Wrap: Putin Talks Foreign, Domestic Policy in Annual Q&A Session, RUSSIAN NEWS
AND INFORMATION AGENCY, Oct. 25, 2006, http://en.rian.ru/russia/20061025/55133901.html.
75 See J.A.G. GRIFFITH & MICHAEL RYLE, PARLIAMENT: FUNCTIONS, PRACTICE AND PRO-
CEDURES 353 (1989); 10 Downing Street, Prime Minister's Question Time, http://www.number-1.gov.uk/output/Page5180.asp (last visited Jan. 9, 2008).
76 Similar institutions, modeled after the Prime Minister's Question Time, have been
adopted in several parliamentary nations, including Australia, Canada, India and New Zealand.
See HOUSE OF REPRESENTATIVES PRACTICE 527-57 (I. C. Harris ed., 5th ed. 2005), available
at http://www.aph.gov.au/house/pubs/PRACTICE/chapterl5.htm#anl (describing the use of
Question Time in Australia); Compendium, House of Commons: Procedure Online, http://
www.parl.gc.ca/compendium/web-content/c-g.questions-e.htm#2 (last visited Jan. 9, 2008)
(describing the procedures used in Canada's Question Period); New Zealand Parliament,
Evolution of Parliament: House of Representatives, http://www.parliament.nz/en-NZ/Hst
Bldgs/History/Evolution/HoReps/9/6/0/9600aa606e98449eabbddba9f9a75391 .htm (last visited
Jan. 9. 2008) (describing the use of Question Time in the New Zealand Parliament); Question
Hour in Lok Sabha, http://www.parliamentofindia.nic.in/ls/intro/p6.htm (last visited Jan. 9,
2008) (describing the importance of Question Hour in the Parliament of India).
77 See GRIFFITH & RYLE, supra note 75, at 259-60; 10 Downing Street, supra note 75.
The wide variety of topics addressed during the Question Time indicates the extraordinarily
high level of access that Members of Parliament have to the Prime Minister, and is especially
notable because the discussion takes place in a public, televised setting.
78 See supra Part I.C.
79 See Kim Lane Scheppele, Constitutional Ethnography: An Introduction, 38 LAW &
Soc'Y REv. 389, 390 (2004) ("The urgent issue in constitutional studies typically is to know
whether the experiences of some constitutional settings are helpful for understanding othersand that will depend on how similar other systems are to one's own, whether they have dealt
with the same sort of historical problems, whether they have drawn their constitutional ideas
from the same well.").
264
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THE PRIME MINISTER'S QUESTION TIME
Parliament formally established the Prime Minister's Question Time
in 1961 as a means to increase the accountability of the Prime Minister to
the House of Commons and to the general public. 80 The Prime Minister
and his Cabinet function both as the leadership of the House of Commons and as the executive branch of the British government, 8' but it is in
their latter capacity that they must answer to the House of Commons for
their policies and actions. The Prime Minister's Question Time appears
to be equal parts an attack on the Prime Minister's policies by Members
of Parliament (MPs) of opposition parties, support of the Prime Minister
by MPs of his own party, an opportunity for the Prime Minister to discuss the achievements of his party and Cabinet, and an opportunity for
MPs to demonstrate to their constituents that they are addressing their
concerns. 82 Perhaps most importantly, the dialogue among the MPs and
the Prime Minister makes the process of government more transparent,
and serves an indispensable means to keep the Prime Minister and his
government accountable to the public.
1. Role of the Prime Minister
The Prime Minister serves in multiple capacities-he or she is both
the leader of the political party that enjoys a majority in the House of
Commons and the executive in charge of government.8 3 Unlike the U.S.
presidency, the prime ministership was not established by a governmental or constitutional mandate, but developed over time as a Cabinet posi-
80 See GRIFFITH & RYLE, supra note 75, at 354, 357; David Williams, The Courts and
Legislation: Anglo-American Contrasts, 8 IND. J. GLOBAL LEGAL STUD. 323, 335 (2001); 10
Downing Street, supra note 75; HOUSE OF COMMONS INFORMATION OFFICE, FACTSHEET PI:
PARLIAMENTARY QUESTIONS 9 (Mar. 2007), available at http://www.parliament.uk/factsheets
[hereinafter PARLIAMENTARY QUESTIONS FACTSHEET]. The Prime Minister has been, along
with other cabinet ministers, subjected to questioning from Members of Parliament since 1721,
but the formal institution of a separate Prime Minister's Question Time took place in 1961.
See PARLIAMENTARY QUESTIONS FACTSHEET 2, 10.
81 See GRIFFITH & RYLE, supra note 75, at 19.
82 RONALD Burr, THE POWER OF PARLIAMENT 323-24 (1967); PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 9 (noting that: "While some questions are genuinely seeking information or action, others will be designed to highlight the alleged shortcomings of the
Minister's department or the merits of an alternative policy. But not all questions are hostile.
Many, especially those 'inspired' by [a] Minister or otherwise put down by party colleagues,
will enable popular decisions to be announced and government successes to be advertised.").
83 See PETER HENNESSY, PRIME MINISTER: THE OFFICE AND ITS HOLDERS SINCE 1945, at
41 (2000); PAUL CHRISTOPHER MANUEL & ANNE MARIE CAMMISA, CHECKS & BALANCES?
HOW A PARLIAMENTARY SYSTEM COULD CHANGE AMERICAN POLITcs 25 (1999).
20081
THE EXECUTIVE CREDIBILITY GAP
tion. 84 Together, the Prime Minister and his Cabinet act as the executive
85
branch of the British government.
The roles of the Prime Minister of the United Kingdom and that of
the President of the United States are significantly different. 86 However,
the evolution of the position of Prime Minister into the powerful leader
of the Legislature and the executive figure at the helm of government 87
explains much of the momentum behind the creation of the Prime Minister's Question Time in 1961. This evolution provides a backdrop for
examining whether the Question Time is a useful and effective tool for
executive accountability that should-from a policy perspective-be
88
considered for use in the United States.
The position of Prime Minister was not always considered to be a
powerful one, let alone the executive in charge of government. In the
early eighteenth century, when the Cabinet first designated the position,
it was viewed less than favorably: "In [the] inner ring of [Cabinet] ministers there was frequently one who by common consent was the foremost,
84 HENNESSY, supra note 83, at 43 (citing PETER HENNESSY, THE HIDDEN WIRING: UN-
EARTHING THE BRITISH CONSTITUTION 78-79 (1995)). The United Kingdom has no written
constitution comparable to that of the United States. Positions such as that of the Prime Minister developed over time, not as the result of constitutional mandate or a statute. See id. at
36-39.
85 See GRIFFITH & RYLE, supra note 75, at 19; MANUEL & CAMMISA, supra note 83, at
25.
86 See HAROLD J. LASKI, PARLIAMENTARY GOVERNMENT IN ENGLAND 201-02 (1938).
87 The Prime Minister is the executive at the head of government in the United Kingdom,
as opposed to the monarch, who is the executive at the head of state. MANUEL & CAMMISA,
supra note 83, at 25. The monarch's diplomatic and patriotic duties as head of state are relatively clear, but her responsibilities as a leader in government are somewhat murkier: the
revolution of 1688 gave Parliament formal control of many governmental functions. See HENNESSY, supra note 83, at 33-34. The monarch retains certain "personal prerogatives" about
which Parliament and the Prime Minister can advise, but cannot mandate a particular course of
action. Id. These prerogatives include the dissolution of Parliament preceding a general election, and the formal appointment of the Prime Minister. See id.; see also Peter North, The
United Kingdom-An Era of ConstitutionalChange, 2000 ST. LoUIS-WARSAw TRANSATLAN-
TIC L.J. 99, 100 (2000) (noting that the Queen did, in 1963, have to step in and appoint Alec
Douglas Home as Prime Minister because of a lack of consensus within the Conservative Party
as to who should succeed Harold Macmillan after his resignation from office). Constitutional
conventions, or norms, in Britain dictate that, with the exception of extraordinary circumstances, the monarch will dissolve Parliament when requested to do so by the Prime Minister,
and appoint as Prime Minister the leader of the political party which secured the most seats in
the House of Commons in a general election. HENNESSY, supra note 83, at 33-34; see also
Adam Tomkins, The Republican Monarchy Revisited, 19 CONST. COMMENT. 737, 744 (2002)
(book review) (noting that although the Queen has the right to appoint anyone as Prime Minister, constitutional conventions and norms dictate that she will appoint the leader of the party
with the most seats in the House of Commons).
88 British political scientists consider the rise of the Prime Minister's power as making
him or her analogous to the U.S. President in a number of ways. See, e.g., JENNINGS, supra
note 65, at 162. For a discussion of the differences in the roles of the British Prime Minister
and the American President, see generally GRAHAM ALLEN, THE LAST PRIME MINISTER: BEING
HONEST ABOUT THE U.K. PRESIDENCY (2d ed. 2003).
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whose word carried the most weight and who acted as the principal vehi-
cle in their relations with the King. Sometimes he was called the Prime
Minister, but usually only by his enemies and as a term of mild abuse.
89
He was still very much the King's servant.
The position of Prime Minister, however, has evolved greatly over
time. A vast amount of political power has been consolidated under the
Prime Minister's control. Not only is the Prime Minister's office now
responsible for almost all duties as the head of government, but it also
controls some aspects of government traditionally within the ambit of
Parliament. 90
As the prominence and power of the Prime Minister increased, so
did the perceived need by the Houses of Parliament and the public to
keep him or her accountable to the other branches of government and to
the general public. 9 1 The advent of the Prime Minister's Question Time,
which is one means by which that need is served in the British political
process, is grounded in the United Kingdom's long history of requiring
all Cabinet ministers to answer representatives' questions about government policies and actions during Parliamentary sessions. 92 The rationale
behind such questioning is, quite simply, to "oblige Ministers to explain
and defend the work, policy decisions and actions of their
departments."
93
2. History of ParliamentaryQuestions
Parliamentary questions, a key element in holding the government
to account, 94 originated in 1721 during floor debates and have undergone
89 HENNESSY, supra note 83, at 39 (citing J.H. PLUMB, ENGLAND IN THE EIGHTEENTH
CENTURY (1714-1815) 49-50 (1966)).
90 See HENNESSY, supra note 83, at 41, 45-51 (noting that the Prime Minister has, over
time, reduced the number of personal prerogatives of the monarch, and has gradually shifted
control over the power to initiate legislation from the Parliament to the executive); MANUEL &
CAMMISA, supra note 83, at 54 (noting that although the Queen formally opens each session of
Parliament by reading her government's proposals for the upcoming legislative session, the
text of the Queen's speech is prepared by the Prime Minister, and the Queen is obligated to
read whatever is put before her); North, supra note 87, at 104 (stating that "constitutionally in
many areas [the Queen] has to act on the formal advice of the government of the day. That is,
indeed, the role of a constitutional monarch.").
91 HOUSE OF COMMONS PROCEDURE COMMrITEE, THIRD REPORT, 2001-2, H.C. 622, at
18, available at http://www.publications.parliament.uklpa/cm2001O2/cmselect/cmproced/622/
62203.htm [hereinafter THIRD REPORT]; PARLIAMENTARY QUESTIONS FACTSHEET, supra note
80, at 9.
92 THIRD REPORT, supra note 91, at 6 (citing PATRICK HOWARTH, QUESTIONS IN THE
HOUSE: THE HISTORY OF A UNIQUE BRmSH INSTITUTION 11-14 (1956)).
93 GRIFFITH & RYLE, supra note 75, at 254; PARLIAMENTARY QUESTIONS FACTSHEET,
supra note 80, at 2.
94 North, supra note 87, at 100. One scholar noted in reference to parliamentary questions, "How easy it would be for the Government to ride off after a blunder if it had not to
meet the criticism which inevitably follows." JENNINGS, supra note 65, at 88. Individual min-
2008]
THE EXECUTIVE CREDIBILITY GAP
an evolution in form and substance over the subsequent years. 95 The
establishment of a formal questioning period of the Cabinet ministers
arose in 1833,96 until which point oral questions were typically posed to
the Cabinet ministers and the Prime Minister on an ad hoc basis during
97
floor discussion or debates.
Notably, no formal question time existed in the United Kingdom in
the 1780s, when the framers of the U.S. Constitution were debating the
structure of the federal government and considering possible means of
providing systemic limitations on the branches of government.
As to substance, each question posed must seek information that is
unpublished, on a matter within the responsibility of the Cabinet official
from whom an answer is sought, and must not seek a legal opinion or
information which is confidential for security reasons. 9 8 Cabinet ministers are allowed to delegate the answering of questions to junior officials
within their department, whereas the Prime Minister is not allowed to do
so.
99
3.
Development of the Prime Minister's Question Time
Until 1961, the Prime Minister and other Cabinet ministers fielded
questions during the same Question Time.100 In practice, this meant that
the Prime Minister, who retains a certain scope of duties not delegated to
isters are accountable for their own actions and decisions, as well as for those who work in
their departments. See GRANT JORDAN, THE BRITISH ADMINISTRATIVE SYSTEM 210 (1994).
95 It is commonly believed that the first question to be posed orally to a Cabinet minister,
and maintained as part of the parliamentary record, was in 1721. PARLIAMENTARY QUESTIONS
FACTSHEET, supra note 80, at 2.
96 PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 2; see also BUTT, supra
note 79, at 63 (discussing the effect of select committee report of 1832).
97 PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 2. Both written and oral
questions could be posed to any of the Cabinet ministers, and were only to be addressed to the
Cabinet minister who was responsible for the subject matter of the question. Id. This restriction effectively shielded the Prime Minister from having to answer questions, since most subject areas would have been covered by one of his Cabinet ministers. Id. In 1833, Members of
Parliament began the practice of giving a Cabinet minister written notice of a question by
listing it in a Notice Paper which outlined issues raised for future discussion. Id. By 1869, all
of the questions to be posed were consolidated into one section of the Notices. Id. The
practical effect of this change was that Cabinet ministers answered the questions in succession
for a certain period of time. See id. at 2-3. The establishment of a formal departmental
Question Time for Cabinet officials stems from this practice. Id. The procedures surrounding
the Parliamentary Questions have been reviewed and adapted several times by Parliamentary
select committees, most recently in 2002. See id. at 3.
98 GRIFFIH & RYLE, supra note 75, at 255-56; PARLIAMENTARY QUESTIONS FACTSHEET,
supra note 80, at 4. The government (meaning the Prime Minister and Cabinet) also retains
the right to refuse to answer any question outright. THIRD REPORT, supra note 91, at 6.
99 PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 4.
100 THIRD REPORT, supra note 91, at 7.
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Cabinet ministers,' 0 ' answered very few questions himself.' 0 2 This practice of shielding the Prime Minister from questions led Parliament in
1961 to set aside a separate Question Time in which only the Prime Minister would answer questions. 10 3 The establishment of the Prime Minister's Question Time was a matter of Parliamentary convention and not
the result of a new law or an Act of Parliament. 104 It is now considered a
matter of British constitutional convention. 0 5
Since 1961, each week that the House of Commons has been in
06
session, the Prime Minister has been obliged to answer their questions. 1
Even so, the Prime Minister continued the practice of referring questions
to other Cabinet ministers until 1977, when the Parliament adopted a new
format for questions posed. The change permitted Members of Parliament to ask an open question followed by supplementary questions, all of
which the Prime Minister was required to answer himself during the
Prime Minister's Question Time without necessarily having prior knowl10 7
edge of the substance of the questions.
This paved the way for a significant shift in the utility of the Prime
Minister's Question Time to opposition parties and the public. '1 By
asking numerous questions with follow-up queries, the leaders of the major opposition parties in Parliament used the Question Time to hold the
10 9
Prime Minister accountable for his actions.
101 PARLIAMENTARY QUESTIONS FACTSHEET, supra
note 80, at 6;
THIRD REPORT, supra
note 91, at 7.
102 Under the departmental Question Time format, the Prime Minister would usually answer questions relating only to areas not specifically within the responsibility of another cabinet minister, such as questions of national security or the appointment of ambassadors. THIRD
REPORT, supra note 91, at 7; PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 6.
103 GRIFFITH & RYLE, supra note 75, at 259.
104 Tomkins, supra note 87, at 742 n.13.
105 Id. Constitutional conventions in Britain are practices that have been adopted as
norms by the government, and which are related to constitutional concepts. See id. at 742-44.
106 PARLIAMENTARY QUESTIONS FACTSHEET, supra note 80, at 2. Initially the Prime Minister answered questions twice a week for fifteen minutes each time. See id. at 7. In 1997, the
sessions were consolidated into one weekly half-hour session. Id. at 6.
107 HENNESSY, supra note 83, at 81 (noting that the change in practice "added greatly to
the stress and intensity of the preparation required in No. 10 [Downing Street, the Prime Minister's official residential and office address,] on PMQ days."); see also GRIFFITH & RYLE,
supra note 75, at 371. Procedurally, the PMQ begins with a Member asking the Prime Minister to list his engagements for the day. GRIFFITH & RYLE, supra note 75, at 259. This catch-all
question serves as a springboard for supplementaries on any topic of interest, the theory being
that the supplementary relates to what the Prime Minister's job is, which was the focus of the
original questions. Id. In 2005, Tony Blair, the Prime Minister of the United Kingdom from
1997-2007, reported still feeling nervous on PMQ days despite eight years of practice. Home
News: Day 15-Election 2005, THE TIMES (London), April 20, 2005, at 25.
108 See GRIFFITH & RYLE, supra note 75, at 260, 354. In fact, Opposition leaders were
known to forego asking any questions prior to the adoption of the open format, since the
question would likely not be answered by the Prime Minister himself. See id. at 354.
109 See id. at 259, 354. In the current make-up of the House of Commons in which the
Labor Party holds the most seats, the leader of the Conservative Party, which holds the second-
2008]
THE EXECUTIVE CREDIBILITY GAP
The questions asked showcase the differences in policies between
parties and highlight perceived shortcomings in the Prime Minister's actions. They also give the opposition party leaders an important opportunity to confront the Prime Minister on topical issues of importance to
their parties and the public, and increase the visibility of opposition
Members of Parliament within their own constituencies." 0
Although critics of the Prime Minister's Question Time dispute
whether it fulfills its promise of governmental accountability, 1 ' other
politicians, commentators and critics believe that there is significant
value in the Prime Minister's Question Time.' 2 In fact, some regard it
as "the very centre of political argument and believe this is the time
' 13
when the Government and the Prime Minister are most exposed." "
Question Time also institutionalizes the right for Members of Parliament from minority political parties to have a public voice in the ongoing business of government. Considering Britain's fused executive and
legislative branch, this voice is tremendously important in providing a
public check on a dominant political party.
A secondary function is that the Prime Minister's Question Time
affords all Members of Parliament the opportunity to be publicly heard
by the Prime Minister, and to air their constituents' particular concerns.
In doing so, the Members of Parliament who ask questions can demonmost seats, has the right to ask three or four supplementary questions, and the leader of the
Liberal Democrats, with the next largest contingent of seats, has the right to ask two supplementary questions. 10 Downing Street, supra note 75.
110 GRIFFITH & RYLE, supra note 75, at 260, 354. Other MPs (known as "backbenchers")
are also granted the right to ask a single question through a lottery system called the "shuffle."
Id. at 254-55. The public gets an additional gloss on the Prime Minister's Question Time
from the press, who digest the Prime Minister's Question Time and comment upon the quality
and content of the questions and answers each week. See id. at 354.
111 Burr, supra note 82, at 21 (noting that the Prime Minister's Question Time has been
attacked as the "ritual exchange of non-information"); Robin Oakley, BlairAvoiding Face-toFace Debate, CNN.coM, Apr. 29, 2005, http://www.cnn.com/2005lWORLD/europe/04/29/
oakley.blog.29/index.html (noting that the exchanges between party leaders at Prime Minister's Question Time are "sharply time-limited and do not permit the serious examination of
policy positions"); THIRD REPORT, supra note 91, at 7 (noting some politicians' belief that the
PMQ had "developed from being a procedure for the legislature to hold the executive to account into a partisan 'joust' between the noisier supporters of the main political parties").
112 See LEVINSON, supra note 14, at 68 (describing the press conferences held by United
States Presidents to be "an exceedingly pale and inadequate substitute" for the rigorous questioning that the United Kingdom Prime Minister undergoes during Question Time).
113 THIRD REPORT, supra note 91, at 7. The U.K. government believes that parliamentary
questions are fulfilling their objective of accountability. See
PRESIDENT OF THE
COUNCIL &
LEADER OF THE HOUSE OF COMMONS, GOVERNMENT RESPONSE TO THE PROCEDURE COMMIT-
TEE REPORT ON PARLIAMENTARY QUES'nONS (H.C. 622), Oct. 2002, Cm. 5628, at 7; Burrr,
supra note 82, at 323 (arguing that the Prime Minister's Question Time benefits the "collective
psychology of British Politics because it obliges the Prime Minister, the most powerful man in
the Executive, to come down to Parliament and answer the attacks of the humblest backbencher").
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strate their responsiveness to their own constituencies and highlight topics of local importance, particularly when an election is impending or
controversial policies are being discussed."14
B.
A
PRESIDENT'S QUESTION TIME
In the United States, the executive branch now wields a great deal
more power than was originally envisioned or expected under the Madisonian model of separated and divided government. Just as the role of the
British Prime Minister has gained more prominence over time, so has
that of the President of the United States." 5 Additionally, political parties in the United States have become more powerful, and the President,
through highly successful mechanisms of party discipline, can exercise
effective control over his own party members. 116 Recent history offers
examples of how the congressional oversight function can be rendered
virtually impotent when there is one-party rule in the legislative and executive branches." 7 Mandatory question-and-answer sessions, akin to
the Prime Minister's Question Time in the United Kingdom, would afford a timely, 1 8 efficient, and effective means of opening up discourse
between the President and Congress, particularly at times when no other
avenue of information-gathering by Congress is politically viable.' 1 9
1. Accountability and Transparency to Improve the Function of
Government
The primary policy objectives of introducing a new institutional element into the relationship between the President and Congress akin to a
Question Time are to increase the accountability of the executive branch,
114 BuTr, supra note 82, at 324. See, e.g., James Blitz, Blair's Tough Challenger:Man in
the News Michael Howard, FINANCIAL TIMES (US), Apr. 9, 2005, at 7 (noting that Mr. Howard's "virtuoso performance at prime minister's question time" could help gain seats for the
Conservative party in the upcoming parliamentary elections); Matthew Paris, When It's Time
to Seize the Moment, Kennedy Is Fumbling in the Dark, THE TIMES (London), Apr. 16, 2005,
at F21 (stating that Charles Kennedy, leader of the Liberal Democratic party, has not used his
questions at the PMQ to challenge Tony Blair's "mendacity" on the question of Iraq).
115 See supra Part I.
116 TUSHNET, supra note 57, at 18-19 (arguing that modem political parties are characterized by internal ideological agreement coupled with a willingness to cede authority to party
leaders to enforce discipline among the members, set objectives, name committee chairs, and
set committee agendas); Levinson & Pildes, supra note 4, at 2334.
117 See supra Part I.C.
118 A lack of timeliness is endemic to Congressional investigations. See Schumer, supra
note 44, at 24 (noting that Attorney General Alberto Gonzales took five and a half months to
respond to questions from the Senate Judiciary Committee relating to warrantless wiretapping,
and that the Attorney General provided his responses on the eve of his next appointment to
meet with the committee).
119 Prakash, supra note 6, at 546 (discussing the need for flexibility in the nature of interactions among different branches of government, and noting that changes in these interactions
are often "appropriate and desirable").
2008]
THE EXECUTIVE CREDIBILITY GAP
offer greater government transparency,120 and improve the function of
government through public and timely communication. 12 The current
system does not provide a mechanism for direct interaction between the
President and Congress without resort to a formal investigation and the
use of Congress's subpoena or impeachment power. 122 If Congress
chooses not to utilize a subpoena against the executive branch, the only
remaining institutional option for "dialogue" between Congress and the
12 3
President is the State of the Union address.
Given this backdrop, a President's Question Time should not be
construed as a formal or punitive check on the Executive by the Legislature. Unlike some of the checks and power-dividing elements delineated
in the Constitution, such as the ability to override a presidential veto or
impeach the President, 24 a President's Question Time would not give
the Legislature the right to prevent the President from taking any particular course of action. 125 Rather, a President's Question Time would sim26
ply be an additional reporting requirement for the President.
120 See Shane, Political Accountability, supra note 24, at 210 (arguing that greater political accountability can only be achieved through "widespread access to information about the
nature of the decisions at issue," among other factors).
121 Bruce G. Peabody & John D. Nugent, Toward a Unifying Theory of the Separation of
Powers, 53 AM. U. L. REV. 1, 25-26 (Oct. 2003) (stating that the relations among the different
branches of government can be a means to strengthen government and reduce inter-branch
impasses); Shane, PoliticalAccountability, supra note 24, at 204-05 (stating that "open, vigorous government dialogue" may be the primary means of ensuring that the government acts in
the public interest).
122 See U.S. CONST. art. II, § 4 (describing the grounds on which the President may be
removed from office following impeachment); McGrain v. Daugherty, 273 U.S. 135, 161
(1927) ("[Tlhe power to secure needed information has long been treated as an attribute of the
power to legislate. It was so regarded in the British Parliament and in the Colonial Legislatures before the American Revolution.").
123 U.S. CONST. art. II, § 3 (establishing the obligation of the President to address Congress "from time to time" to inform Congress of the State of the Union and recommend measures for Congress's consideration). Despite the fanfare generated by the President's State of
the Union address each year, there is no avenue for dialogue between party members, as the
President generally offers his speech, which is dissected after the fact by the media and politicians of the opposing political party. See J.R. Labbe, That Speech the Other Night: Applause!
Applause!, FT. WORTH STAR TELEGRAM, Jan. 29, 2007, at E3 (noting that Congress's response
to the President's State of the Union address can be measured by its body language and level
of applause).
124 U.S. CONST. art. I, § 7, cl. 2 (granting Congress the right to override a presidential
veto with a two-thirds supermajority); U.S. CONST., art. I, § 3, cl. 6 (granting the Senate exclusive power to try the President after impeachment).
125 In this regard, a President's Question Time would be fundamentally distinguishable
from a legislative veto or any similar efforts at limiting the power of the executive branch or
administrative bodies. In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck
down the legislative veto, noting that it ran afoul of the separation of powers and the framers'
"finely wrought and exhaustively considered" procedures which governed the enactment of
legislation. Id. at 951.
126 See infra Part IV. (discussing different Presidential disclosure and reporting requirements). The proposition of this additional reporting requirement on the Executive would, un-
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Unlike investigations conducted by an independent counsel or other
investigative committee in which the ultimate question is one of criminality or severe wrongdoing, 127 a President's Question Time would provide a window into the actions of the executive branch without the
specter of possible indictment in tow. 128 Thus, rather than being in the
form of a criminal inquiry, the periodic interaction between Congress
and the President could focus on the substance of policy issues and the
129
wisdom of the President's decisions.
The State of the Union address-the only time at which the Presi30
dent is obligated under the Constitution to appear before Congress,
barring a formal investigation or impeachment proceeding-provides the
basis for a comparative example, particularly since it was modeled after
the monarch's speech opening Parliament in the United Kingdom. 131
The U.S. Constitution only provides that the President must deliver such
an address from "time to time,"' 132 and does not provide any opportunity
for Congress to respond to the President's address at the time it is made
133
and before the same audience.
doubtedly, be met with a great deal of presidential resistance. See generally Christopher S.
Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era,
1945-2004, 90 IowA L. REV. 601 (2005) (providing an overview of modem presidential resistance to legislative oversight).
127 Carter, supra note 6, at 138-39.
128 See Shane, Inter-Branch Norms, supra note 6, at 524-25 (arguing that the threat of
impeachment is wielded too freely when the House of Representatives disagrees with the politics of the President).
129 See CHARLES M. HARDIN, PRESIDENTIAL POWER & AcCOUNTABILITY: TOWARD A NEW
CONSTITUTION 6-7 (1974) (arguing that impeachment incorrectly focuses the public on the
question of criminal guilt or innocence, which "hides and even denies the political responsibility" underlying the decision-making in government). "Political adequacy is judged not by
weighing individual guilt or innocence according to the rules of evidence but rather by political procedures for testing confidence in the prudence and judgment of government." Id. at 7;
see also Carter, supra note 6, at 138-39 (noting that the existence of an independent counsel
lowers the public's standard of what is acceptable behavior in the executive branch to the
question of whether certain activity was illegal, as opposed to whether "the executive branch
performs with dignity and propriety").
130 U.S. CONST. art. II, § 3 (requiring that the President shall "from time to time give to
the Congress Information of the State of the Union, and recommend to their Consideration
such Measures as he shall judge necessary and expedient").
t31 While modeled after the speech of the monarch opening Parliament, the State of the
Union speech was always intended to serve a different function. See THE FEDERALIST No. 77,
at 458 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
132 U.S. CONST. art. II, § 3. The Constitution does not specify any particular interval at
which the President is required to report to Congress. It is a matter of convention that the State
of the Union address has been delivered in person, and annually, since the mid-twentieth
century.
133 See BERGER, supra note 60, at 37 (arguing that Article 11, § 3 of the U.S. Constitution
places the President under an unqualified duty to inform Congress of matters within the executive branch).
2008]
THE EXECUTIVE CREDIBILITY GAP
Regardless of a particular president's party affiliation, the State of
the Union address typically lays out lofty plans and ambitions for the
coming year, ignores issues the President does not want to confront, and
134
cannot be challenged at the time.
The United Kingdom offers an instructive comparative example.
The Queen opens each session of Parliament with a speech in which, like
the President's State of the Union address, she describes governmental
objectives for the coming session of Parliament. 135 The Prime Minister
writes the speech but because the monarch acts as the figurehead of government, the Queen delivers the speech. 136 However, unlike the U.S.
State of the Union address, after opposition parties have had an opportunity to parse the government's proposals, a Question Time follows the
Queen's speech and gives opposition parties the ability to question the
Prime Minister on the wisdom and feasibility of the announced
objectives.
137
Such questioning does not prevent the Prime Minister and his Cabinet from pushing their preferred policies and agenda.1 38 Instead, by
probing those policies and highlighting any perceived deficiencies or
benefits, the questioning advances the Madisonian model of government
actors working against each other for the benefit of the polity as a whole.
This questioning may actually strengthen the Prime Minister by forcing
him to develop policy objectives that are better grounded and less vulnerable to well-reasoned criticism. 139 The same argument would hold true
for the President.
134 Instead, challenges to the agenda set forth in the State of the Union address are voiced
through news analysis or statements made by opposition party politicians after the fact. See,
e.g., Frank Rich, Editorial, We're Not in WatergateAnymore, N.Y. TIMES, July 10, 2005, at 12
(discussing how in his 2003 State of the Union address, President George W. Bush claimed
that Iraq was stockpiling uranium-a statement that turned out to be inaccurate-as he made a
case for waging war in Iraq); Democratic Response by Senator Jim Webb, http://speaker.gov/
newsroom/multimedia?id=001 1 (last visited Jan. 9, 2008) (providing a webcast and transcript
of Senator Webb's response to President Bush's State of the Union address on January 23,
2007).
135 MANUEL & CAMMISA, supra note 83, at 54.
136 Id.
137 U.K. Parliament: State Opening of Parliament, http://www.parliament.uk/about/how/
occasions/stateopening.cfm (last visited Jan. 9, 2008).
138 MANUEL & CAMMISA, supra note 83, at 54.
139 Additionally, in order to properly prepare for the Question Time, he must familiarize
himself on all probable topics of discussion, thereby making all of the executive departments
more accountable to the Executive himself. HENrNssy, supra note 83, at 81 (discussing the
ability of the Prime Minister to hold his Cabinet members to a higher standard of accountability because of his need to prepare for the Prime Minister's Question Time). The President's
ability to keep the officers and employees of the executive branch accountable to him is explicitly established in the Constitution itself. See U.S. CONST. art. II, § 2, cl.I. Commentators
have noted a distinct lack of accountability in the administrative departments which could be
mitigated by the President taking a more active role in holding administration officials to
account himself. See Sunstein, supra note 37, at 453 (arguing that "the President is in an
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CORNELL JOURNAL OF LAW AND PUBLIC POLICY
[Vol. 17:247
Further, the ability of congressional representatives to speak directly
the
President in a public venue, 140 such as a President's Question
to
Time, would create a transparent means of communication between Congress and the White House. 14 1 Such a forum for public dialogue and
debate would alleviate the current limitations of reliance on politicians'
statements to the press, on questions and answers during interviews or
press conferences, 142 or on guesswork. 143 This dialogue would also have
a ripple effect in creating greater accountability of each Representative to
his or her constituents.
Significantly heightened access to the Executive would create a
stronger culture of accountability and would work against the diffusion
of responsibility within the bureaucracy of the administration. 144 Such
diffusion often allows the President to dissociate with unsuccessful or
controversial activities of the executive branch by claiming a lack of di145
rect oversight or a lack of reporting by the various offices to him.
unusual position to centralize and coordinate the regulatory process"). "The President is the
only national official charged with the implementation of a mass of legislation. This capacity
is especially important in light of the proliferation of agencies with overlapping responsibilities." Id.
140 Obviously, informal, non-public communications occur between the executive branch
and Congress on a frequent basis, particularly during critical periods of government action.
For example, Cyrus Vance, Secretary of State from 1977 to 1980, recalls having "regular and
full consultations with the congressional leadership several times a week" during the Iranian
hostage crisis. Cyrus R. Vance, Striking the Balance: Congress and the President Under the
War Powers Resolution, 133 U. PA. L. REV. 79, 92 (1984); cf.JENNINGS, supra note 65, at 89
("Secret sessions were suited to the oligarchic government of the eighteenth century. They are
the negation of democratic principles.").
141 See Williams, supra note 80, at 335 (noting that Justice Robert H. Jackson admired the
British system of parliamentary questions for offering a means to greater accountability of
Ministers).
142 Michael Ignatieff, Who Are Americans to Think That Freedom Is Theirs to Spread?,
N.Y. TIMES MAGAZINE, June 26, 2005, at 42 (noting that the administration of George W.
Bush has "the least care for consistency between what it says and does of any administration in
modem times."); e.g., Richard W. Stevenson, At White House, a Day of Silence on Rove's Role
in C.I.A. Leak, N.Y. TIMES, July 12, 2005, at Al; see also supra Part I.B. (discussing why
dependence on press conferences is problematic from a transparency perspective).
143 The value of such a mechanism is significant in increasing the transparency of the
government by insisting that the President himself answer sometimes difficult questions without the protection of a spokesperson. For example, in a July 2005 press conference, White
House spokesman Scott McClellan declined to answer almost all questions related to the President's understanding of whether presidential adviser Karl Rove leaked the name of a covert
C.I.A. operative to the press, essentially ignoring the question altogether. Press Briefing by
Scott McClellan (July 11, 2005), http://www.whitehouse.gov/news/releases/2005/07/200507
11-3.html.
144 Shane, PoliticalAccountability, supra note 24, at 207-08. I do not mean to argue that
the independent nature of certain administrative agencies, such as the Securities and Exchange
Commission or the Federal Election Commission, should be compromised.
145 For example, during the Iran-Contra investigation, President Reagan's professed a
lack of knowledge about the activities of numerous executive branch officials. Shane, Political Accountability, supra note 24, at 173. A President's Question Time, by obligating the
President to exercise his rights under the Opinion Clause, U.S. CoNsT. art. H, § 2, cl.1, and
2008]
THE EXECUTIVE CREDIBILITY
GAP
Further, a President's Question Time would assist in improving the function of the Legislature by allowing representatives to elevate issues of
importance beyond House floor debates. Important issues could be aired
before the President, addressed by the executive branch, and evaluated
by the public in a relatively timely fashion,1 4 6 even if the White House
14 7
and both branches of Congress are controlled by one party.
The organization and role of political parties in the United States is
significantly different than in the United States. The presidential system
in the United States has no formal institution akin to the "opposition
rights" that are found in parliamentary systems. 148 The difference in the
role of parties, however, should not operate as an impediment to establishing a system by which members of a minority political party have a
public forum enabling direct dialogue with the President.
In the case of unified government, the function of a Question Time
is obvious and remarkably similar to that of the Prime Minister's Question Time in Britain: to restore a sense of balance in government in accordance with the Madisonian ideal promulgated at the time the
Constitution was drafted. Although the framers of the Constitution
1 49
hoped that political parties would never take root in the United States,
the modern reality is that the strength of political parties at times of unified government makes the U.S. system remarkably similar to the Westminster parliamentary system of a linked executive and legislative
branch. 150 As such, similar measures should be considered to restore a
greater degree of accountability of the executive branch.
familiarize himself with issues within various executive offices, would at least partially ameliorate the problem of a President deliberately remaining uninformed of a department's actions
in order to be able to dissociate from controversial or politically unpopular actions that the
department takes.
146 One can imagine Newt Gingrich in 1995, as Speaker of the House of Representatives,
using a Question Time as an opportunity to question and criticize President Clinton about
various aspects of the federal budget prior to the two shut-downs of the federal government
that year. See Shane, Inter-Branch Norms, supra note 6, at 517-18.
147 Shane, PoliticalAccountability, supra note 24, at 202 (discussing the fact that when
one party dominates both chambers of Congress and the Presidency, Congress's checks on the
White House tend to diminish significantly); see also Richard W. Stevenson, Pressure by
White House Is Being Applied with Care, N.Y. Tivms, May 19, 2005, at A24 (noting the
ability of the White House to pressure Senate Republicans to follow the White House agenda
regarding judicial nominations and filibusters); c.f. North, supra note 87, at 106 (noting that
even when the Conservative Party had a 175-seat deficit in the House of Commons, the Prime
Minister's Question Time gave its leader a platform to voice the party's concerns and criticisms about government policy).
148 See Robert A. Dahl, The American Oppositions: Affirmation and Denial, in PoLrTCAL
OPPOSITIONS IN WESTERN DEMOCRACIES 34-69 (Robert A. Dahl ed., 1966); Ludger Helms,
Five Ways of InstitutionalizingPoliticalOpposition:Lessons from the Advanced Democracies,
39 Gov'T & OPposrroN 22, 26-30 (2004).
149 See THE FEDERALIST Nos. 48, 51 (James Madison).
150 Levinson & Pildes, supra note 4, at 2368-69.
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As a tool for heightened accountability, a President's Question Time
would have some limitations. For example, a president would likely use
the Question Time as a platform to spin his positions on a given issue
without providing a real answer to a question, a criticism that has been
leveled at the Prime Minister.1 5 1 Additionally, a president could give
false information in response to questions posed. 152 This is obviously a
risk any time a president speaks to Congress, the press, or the public,
153
particularly in cases in which the President is not under oath.
However, because a Presidential Question Time would require the
President himself to answer questions on a regular, periodic basis, and
because a Presidential Question Time would be public and televised,
there are significant political incentives and pressures for the President to
avoid the dissemination of misinformation. Any impediment to government efficiency 154 imposed by the institution of a Presidential Question
155
Time would be offset by the larger policy benefits.
151 See THiRD REPORT, supra note 91, at 18 (citing Procedure Committee Report from
1994-1995, in which some Members of Parliament said that the Prime Minister's Question
Time had "developed from being a procedure for the legislative to hold the executive to account into a partisan 'joust"').
152 Zuckerman, supra note 25, at 91-92 (noting that deception of Congress has become
"commonplace" among executive branch officers, particularly focusing on the Congressional
investigations of the Iran-Contra deals).
153 Even being under oath does not guarantee honest information. See Clinton Acquitted;
PresidentApologizes Again, CNN.coM, Feb. 12, 1999, http://www.cnn.com/ALLPOLTICS/
stories/1999/02/12/impeachment/ (discussing President Clinton's impeachment by the U.S.
House of Representatives, and his ultimate acquittal by the U.S. Senate, on charges of perjury
and obstruction of justice).
154 The British government has found its Question Times to be relatively cost-effective,
estimating in 2004 that it spent approximately £345 to research and answer each oral question
posed to the Prime Minister or a Cabinet minister. PARLIAMENTARY QUESTnONs FACTSHEET,
supra note 80, at 12 (noting that MPs "regard this as money well spent in the pursuit of
Ministerial accountability"). The Prime Minister typically answers about fifteen questions
during each Question Time. Id. Although a similar cost analysis cannot be assumed in the
United States, the costs incurred by the British government provides some insight as to the
potential costs to be incurred in instituting a Question Time in the United States.
155 This is particularly so when recalling that deliberation, balance, and caution were
viewed by various framers of the Constitution as hallmarks of a republican government that
was safeguarded from the threat of despotism or tyranny. See Farina, supra note 6, at 522.
The Supreme Court in INS v. Chadha stated plainly that "it is crystal clear from the records of
the [Constitutional] Convention, contemporaneous writings and debates, that the Framers
ranked other values higher than efficiency." INS v. Chadha, 462 U.S. 919, 958-59 (1983)
(rejecting the proffered justification that the legislative veto would make certain government
functions more efficient); see also Ariel L. Bendor & Zeev Segal, Constitutionalismand Trust
in Britain: An Ancient ConstitutionalCulture, A New JudicialReview Model, 17 AM. U. l.4T'L
L. REv. 683, 694 (2002) (noting that the system of separation of powers "does not aim to
enhance efficiency"). It is also evident that one of those key values was government responsiveness to the people. James Madison argued, "A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."
Paul C. Light, Filibusters Are Only Half the Problem, N.Y. TuMES, June 3, 2005, at A23
(noting that the framers of the Constitution would have objected to the "secret gangs" that
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THE EXECUTIVE CREDIBILITY GAP
2.
The Role of the House of Representatives
The bicameral structure of the U.S. Legislature raises the question
of which chamber of Congress the President's Question Time should ad-
dress. The House of Representatives is the more appropriate body, in
light of historical and functional considerations. The House of Representatives, considered by some to be the "Grand Inquest" of government,1 56 was envisioned by the framers of the Constitution to be the
voice of the people.' 57 In the FederalistNo. 49, Madison writes:
The members of the legislative department . .. are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship,
and of acquaintance embrace a great proportion of the
most influential part of the society. The nature of their
public trust implies a personal influence among the people, and that they are more immediately the confidential
58
guardians of the rights and liberties of the people.
The Senate, with its longer terms of office and purported detach-
ment from localized politics, was not structured to serve the same function.1 -59 Because the primary purpose of a Question Time is increased
accountability and transparency, as well as responsiveness to the concerns of the public's representatives, it is most appropriate for the Presi-
dent to answer questions from the representatives of geographic regions
within each state, who would be able to raise the concerns of a localized
160
group of constituents.
seem to be the normal mode of communication between the White House and Congress to
break impasses).
156 BERGER, supra note 60, at 12-13.
157 THE FEDERALIST
158 THE FEDERALIST
159
No. 49 (James Madison).
No. 49, at 313 (James Madison) (Clinton Rossiter ed., 2003).
Madison once opined:
[T]here are particular moments in public affairs when the people, stimulated by
some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how
salutary will be the interference of some temperate and respectable body of citizens,
in order to check the misguided career and to suspend the blow meditated by the
people against themselves, until reason, justice, and truth can regain their authority
over the public mind?
THE FEDERALIST No. 63, at 382-83 (James Madison) (Clinton Rossiter ed., 2003).
160 Whereas the framers of the Constitution envision the strength of the connection between the people and the House of Representatives to be a source of concern for legislative
tyranny, in the case of a President's Question Time, that same connection would be a tool to
affect greater responsiveness to the people's concerns. The framers clearly believed that the
House of Representatives would live up to its name. James Madison wrote:
Who are to be the objects of popular choice [to become representatives]? Every
citizen whose merit may recommend him to the esteem and confidence of his coun-
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Article I, Section 2 of the Constitution grants the House, acting as
the proxy for the public that Madison envisioned, the power of investigation and oversight of the executive branch.1 6 1 A discourse between the
President and those representatives considered to be most connected to
the general population would mirror the structure of the Prime Minister's
Question Time, which takes place in the House of Commons because of
62
its populist nature.1
IH. INFORMATION-SHARING: THE STRUCTURE OF THE
CONSTITUTION AND EARLY PRACTICES
The President's Question Time would alleviate the credibility gap
between the President and Congress, as well as foster a culture of governmental accountability, as it has in the United Kingdom. However, the
Constitution's low level of executive responsiveness raises the question
of whether it would be constitutionally feasible to establish a President's
Question Time. 163 History suggests that a constitutional amendment
would not be necessary, based on early experiments in inter-branch communications and previous governmental adaptations to a changing political environment. 164
A.
THE LANGUAGE OF THE CONSTITUTION
The language of the Constitution itself does not speak to the validity
of an in-person reporting relationship between the President and the Legislature. The Constitution's sole requirement of the President to report
information to Congress is in Article I, Section 3, which requires the
President to "from time to time give to the Congress Information of the
State of the Union, and recommend to their Consideration such Measures
try. No qualifications of wealth, of birth, of religious faith, or of civil profession is
permitted to fetter the judgment or disappoint the inclination of the people.
THE FEDERALIST No. 57, at 349 (James Madison) (Clinton Rossiter ed., 2003).
161 In enacting a President's Question Time, the Congress would need to promulgate legislation using its power under Article I, Section 2, and potentially the "necessary and proper"
clause of Article 1, Section 8. See McGrain v. Daugherty, 273 U.S. 131, 161 (1927) (noting
that power of legislative inquiry has been long-established in the United States).
162 See BERGER, supra note 60, at 34 n. 118, 35-36 (citing the modeling of the House of
Representatives on the House of Commons); JENNINGS, supra note 65, at 88-89 (noting that
"Government and Opposition speak to each other, but for the education of the people.... The
members of the House of Commons ... . have no authority except as representatives, and in
order that their representative character may be preserved they must debate in public.").
163 INS v. Chadha, 462 U.S. 919, 945 (1985) (noting that "policy arguments supporting
even useful 'political inventions' are subject to the demands of the Constitution which defines
powers and, with respect to [the legislative veto], sets out just how those powers are to be
exercised.").
164 Id. at 946-47 (noting the need for such legislation to go through normal channels for
enactment into law and not circumvent the Presentment Clause in U.S. CONST. art. I, § 7. cl.
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THE EXECUTIVE CREDIBILITY GAP
as he shall judge necessary and expedient."1 65 In the Federalist No.
77,166 Hamilton comments that "no objection has been made to this [provision]; nor could they possibly admit of any," suggesting that the fact
and structure of the State of the Union was not cause for argument be67
tween the Federalists and Anti-Federalists.
The Opinion Clause in Article II empowers the President to "require
the Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their respective
Offices,"' 168 but no such corollary clause exists in Article I, where the
powers of Congress are delineated. 169 Given the political compromise
embodied in the Constitution, it is hardly surprising that no reporting
requirement exists from the President to Congress: the framers of the
Constitution were attempting to craft the position of the Chief Executive
to be independent of the expected attempts at political domination by the
70
legislative branch. '
It would be incorrect, however, to assume that because the Constitution does not explicitly demand that the President answer questions
posed by Congress, it would be unconstitutional to enact a law that establishes such a requirement.' 7' To the contrary, the fact that no such re165 U.S. CONST. art. II, § 3. The same section of the Constitution also grants the President
the right to, "on extraordinary Occasions, convene both Houses, or either of them." Id. As
discussed previously, the State of the Union provides no venue for rebuttal or direct questioning of the President by Congress. See supra note 118 and accompanying text.
166 Throughout this section, I rely on the Federalist Papers and the writings of the AntiFederalists to illustrate the major views offered for and against the Constitution's ratification.
These writings are a mixture of political theory and advocacy, however, and are not offered as
an authoritative exposition of the views of the framers or the delegates to the Federal Convention. Other sources, such as the notes of James Madison on the Convention, provide additional
illumination as to the views of the framers. See JACK RAKOVE, ORIGINAL MEANINGS: POLITICS
AND IDEAS IN THE MAKING OF THE CONSTITUTION 3-7 (1997).
167 Scholars have suggested that other parts of the Constitution open up the executive
branch to legislative inquiry, including the "Take Care" clause of Article II, Section 3, which
directs the President to take care of the implementation of Congress' legislation, and Article I,
Section 5(3), which allows Congress to conceal information from the public; there is no corollary right enumerated in the Constitution for the President. See BERGER, supra note 60, at 3,
206, 306.
168 U.S. CONST. art. II, § 2, cl.l.
169 See generally AMAR, supra note 60 (suggesting that the lack of an Opinion Clause in
Article I implies that Congress does not have the right to institute a reporting requirement on
the President). Notably, Alexander Hamilton described the Opinion Clause as a "mere redundancy" in the Constitution, since, as Chief Executive, the President has the inherent right to
demand reports from subordinates in the executive branch. THE FEDERALIST No. 74, at 446
(Alexander Hamilton) (Clinton Rossiter ed. 2003).
170 See supra Part II.B.
171 The President's Question Time would be a means to increase the efficacy of the Legislature, and Congress has the fight to exercise its power toward such a goal. See INS v.
Chadha, 462 U.S. 919, 951 (1983) ("When any Branch [of government] acts, it is presumptively exercising the power the Constitution has delegated to it." (citing J.W. Hampton & Co.
v. United States, 276 U.S. 394, 406 (1928))). The catch-all provision of Article I, which gives
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quirement exists should be viewed as meaning only that it has not been a
part of the historical practice of the nation.1 72 The Constitution is a procedural and structural framework for the nation-it would be far more
remarkable if more specific language supporting a Presidential Question
73
Time existed in the Constitution.
B.
CHECKS AND BALANCES AS ENVISIONED BY THE FRAMERS
Even Madison, the most ardent proponent of systemic checks on the
Presidency, believed that a relatively low level of executive accountability to Congress and to the public was sufficient. 74 He and other framers
believed this would strengthen an executive branch that they perceived as
weaker than and endangered by the Legislature. 175 Their context for
their assumption was the experience of other nations, such as the United
Kingdom, in which Parliament, at the time, had control over most aspects
of the government, 76 as well as the early American experience of inef-
Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," is, therefore, seemingly
the most appropriate basis to enact a law requiring a President's Question Time. U.S. CONST.
art. I, § 8, cl. 18.
172 Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 VA. L.
REV. 101, 122-23 (1984) (arguing that the fact that Presidents have assumed the unilateral
authority to instruct American troops into battle does not mean that the War Powers Resolution, which requires some Congressional involvement in the decision to deploy troops, is constitutionally unacceptable; rather, it only means that the War Powers Resolution differs from
historical practices of the government).
173 Charles J. Cooper et al., Foreign Affairs and the Constitution: The Roles of Congress,
the President,and the Courts: What the Constitution Means by Executive Power, 43 U. MIAMI
L. REV. 165, 188-89 (1988) (noting that the Constitution is "a short, clean, general outline of
the structure and principle of government ... and a most appropriate starting place for the
evolution of a body of law.").
174 In arguing for a strong executive, Madison reasoned that the sheer number of people in
the Legislature, compared to the Executive and the Judiciary, meant that the Legislature would
be the only branch with regular access to, and, therefore, influence over, the voters:
The members of the legislative department ... are numerous. They are distributed
and dwell among the people at large. Their connections of blood, of friendship, and
of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people,
and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages it can hardly be supposed that the adverse
party would have an equal chance for a favorable issue..
THE FEDERALIST No. 49, at 313 (James Madison) (Clinton Rossiter ed., 2003).
175 See supra Part lI.B.
176 THE FEDERALIST No. 52, at 324-25 (James Madison) (Clinton Rossiter ed., 2003); see
also Bendor & Segal, supra note 155, at 684 (discussing traditions of parliamentary
supremacy).
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THE EXECUTIVE CREDIBILITY GAP
fective government that resulted from the overwhelming power of the
177
Legislature under the Articles of Confederation.
Power has shifted toward the executive branch, and political party
strength and discipline have grown. Accordingly, there is a need to revisit the original assumptions of the framers and consider means to enhance executive accountability in response to a systemic gap between the
expectations of the framers and the reality of the modern political
systems. 178
1. The Desire to Strengthen the Executive Branch
The framers of the Constitution were swayed by competing interests
when restructuring the federal government after finding the Articles of
Confederation inadequate. 179 They wanted to adopt the best aspects of
European governments already in existence at the time.' 8 0 Moreover,
after having fought a long and bloody war for independence from an
empire, they wanted to structure a new government in such a way as to
prevent the emergence of a new tyrant.1 8 1 At the same time, however,
the government needed to be more efficient and effective than the legis82
lature-led government of the Articles of Confederation. 1
The framers debated at length about the extent to which the U.S.
government should adopt the structure and practices of other established
governments, and used the United Kingdom's parliamentary system as
the primary model by which to evaluate the merits of various proposed
183
aspects of the new U.S. government.
177 Cooper, supra note 173, at 170 (stating that the "Articles of Confederation established
no executive authority at all"); THE FEDERALIST No. 22, at 147-48 (Alexander Hamilton)
(Clinton Rossiter ed., 2003).
178 Analyzing the framers' intentions regarding the system of checks and balances and the
relative strength of the branches of government informs a comparison of whether the current
balance of powers achieves their intentions. See Peabody & Nugent, supra note 121, at 3
(noting the value of looking at "originalist" sources as a "starting point for further discussions
about the doctrine's meaning and purposes"); see also RAKOVE, supra note 166, at 3-7.
179 Farina, supra note 6, at 489-90.
180 See generally THE FEDERALIST Nos. 15-17 (Alexander Hamilton), Nos. 18-20 (Alexander Hamilton and James Madison).
181 Farina, supra note 6, at 518.
182 Cooper, supra note 173, at 170 (noting that, under the Articles of Confederation, executive power during the Revolutionary War was exercised by a series of ad hoc congressional
committees, creating inefficient and ineffective wartime leadership); Saikrishna Bangalore
Prakash, Hail to the Chief Administrator: The Framers and the President's Administrative
Powers, 102 YALE L.J. 991, 994-95 (1993); Sunstein, supra note 37, at 435.
183 See BERGER, supra note 60, at 35-36; see also Ex parte Grossman, 217 U.S. 87,
108-09 (1925) (noting that the Framers' decision-making process regarding the allocation of
Constitutional powers was grounded in the context of British governmental institutions).
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The debates focused on two areas: the need to avoid the monarchy
that existed in Britain,184 and the need to alleviate the persistent concern
that Parliamentary supremacy in Britain would lead to a legislative tyranny in the United States. 185 In 1787, the prevailing conceptions of a
new U.S. Constitution laid out plans for a President with substantial
powers, but little accountability to the people or other branches of government.1 86 Delegates to the Federal Convention that year met to debate
187
the merits of the draft constitution and to propose changes.
The framers attributed the ineffectiveness of government under the
Articles of Confederation, in part, to the fact that the Articles vested all
legislative, executive, and judicial functions in the unicameral Legislature. 188 The natural response was to propose an executive who was independent of the Legislature and vested with significant power to
administer laws and provide leadership to the nation.' 89 Nonetheless, a
significant number of delegates to the Federal Convention abhorred the
prospect of a powerful executive at the head of the U.S. government.' 90
Those views were effectively countered by other delegates who
spoke of the need for a strong, unitary executive to guide the nation,
counter the numerosity and power of the Legislature, and to champion
184 Ralph Ketcham, Introduction to THE ANTI-FEDERALIST PAPERS AND THE CONSTITU-
TIONAL CONVENTION DEBATES 1, 3-5 (Ralph Ketcham ed., 1986) [hereinafter THE ANTI-FEDERALIST PAPERS].
Id.
186 See Farina, supra note 6, at 493-98.
187 Ketcham, supra note 184, at 4.
185
188 See Cooper, supra note 173, at 170 (discussing the inability of the Legislature to act
efficiently in the role of the Executive under the Articles of Confederation due to its size).
189 Id.
190 The powers of the presidency were a topic of significant debate at the Federal Convention; in fact, debates over the appropriate powers for the Executive lasted for many days of the
Convention. During the first debate on executive power on June 1, 1787, Charles Pinckney, a
delegate from South Carolina, voiced the concern that an executive may encroach on the Legislature's right to declare war and peace, "which would render the Executive a monarchy, of
the worst kind, to wit an elective one." Debate on Executive Power (June 1, 1787), in THE
ANTI-FEDERALIST PAPERS, supra note 184, at 42, 42. Three days later, on June 4, 1787, the
delegates considered whether an executive council, as opposed to a unitary executive, would
be an effective safeguard against both an abuse of the power and the lack of accountability
vested in the proposed executive branch. See George Mason, Opposition to a Unitary Executive (June 4, 1787), in THE ANTI-FEDERALIST PAPERS, supra note 184, at 47, 47. George
Mason, a delegate from Virginia, suggested that an executive council would be most responsive to the needs of the people:
If the Executive is vested in three Persons, one chosen from the northern, one from
the middle, and one from the Southern States, will it not contribute to quiet the
Minds of the People, [and] convince them that there will be proper attention paid to
their respective Concerns? Will not three Men so chosen bring with them, into Office, a more perfect and extensive Knowledge of the real Interests of this great
Union?
Id. at 48-49.
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THE EXECUTIVE CREDIBILITY GAP
the cause of the common person. 19 1 Federal delegates also distinguished
the powers of the President from the powers of a King and defended the
perception that the presidency needed to be strengthened against the
other branches of government: "[The Executive's] means of defending
[his interest is] so feeble, that there is the justest ground to fear his want
of firmness in resisting incroachments."' 192 They further noted that
"[e]ncroachments of the popular branch of the Government [the Legisla19 3
ture] ought to be guarded against."
Those lobbying for a constitution with a strong executive ultimately
prevailed. During the next phase of the constitutional process-when the
states considered ratifying the proposed Constitution-the Federalists
and Anti-Federalists, through their writings, provided the primary debate
on the strength and accountability of the Executive. 19 4 Federalist writers
defended the proposed Constitution, dismissing concerns that the President would become a quasi-monarch 1 95 and defending the system of
checks and balances as the primary means to prevent the dominance of
191 Gouverneur Morris, a delegate from Pennsylvania, argued that:
[T]he Executive Magistrate should be the guardian of the people, even of the lower
classes, against Legislative tyranny, against the Great and the wealthy who in the
course of things will necessarily compose the Legislative body ....
The Executive
therefore ought to be so constituted as to be the great protector of the Mass of the
people.
FederalistConvention Debate on Election and Term of Office of the National Executive (July
17 and 19, 1787), in THE ANTI-FEDERALIST PAPERS, supra note 184, at 114, 117.
192 FederalistConvention Debate on The Judiciary, the Veto, and Separation of Powers
(July 21, 1787), in THE ANTI-FEDERALIST PAPERS, supra note 184, at 120, 122.
193 Federalist Convention Debate on Executive Veto Power (Aug. 15, 1787), in THE
ANTI-FEDERALIST PAPERS, supra note 184, at 159, 159.
194 In their attempts to capitalize on the fear of a tyrannical monarch, the Anti-Federalist
writers cited concerns that the presidency would either quickly evolve into a monarchy or,
conversely, would become a weak and ineffectual head of government. See Samuel Bryan,
Centinel, No. I, FREEMAN'S J. and INDEP. GAZETTEER, Oct. 5, 1787 (Philadelphia), reprinted in
THE ANTI-FEDERALIST PAPERS, supra note 184, at 227, 235. "Centinel," the pen name of
noted Anti-Federalist Samuel Bryan, argued that "[tihe President, who would be a mere pageant of state, unless he coincides with the views of the Senate, would either become the head
of the aristocratic junto in that body, or its minion." Id. Centinel also critiqued the proposed
Constitution by arguing that the entire structure of the system of checks and balances would
lead to a pronounced lack of accountability of the government to the public: "If you complicate the [structure of government] by various orders, the people will be perplexed and divided
in their sentiments about the source of abuses or misconduct, some will impute it to the senate,
others to the house of representatives, and so on ... ." Id. at 231.
195 Hamilton attacked the Anti-Federalist position, noting the limitations on both the term
of office and the powers of the President, which did not exist in the British monarchy. See
THE FEDERALIST No. 69 (Alexander Hamilton). Hamilton concluded one paper by querying:
What answer shall we give to those who would persuade us that things so unlike
resemble each other? The same that ought to be given to those who tell us that a
government, the whole power of which would be in the hands of the elective and
periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
THE FEDERALIST No. 69, at 421 (Alexander Hamilton) (Clinton Rossiter ed. 2003).
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any one branch of government. 196 Hamilton emphasized the need for
presidential independence from the Legislature: "[Another] ingredient towards constituting the vigor of the executive authority is an adequate
provision for its support. It is evident that without proper attention to
this article, the separation of the executive from the legislative depart197
ment would be merely nominal and nugatory."'
Throughout The Federalist Papers, it is clear that Hamilton,
Madison, Jay, and their supporters believed that the provisions already
incorporated into the proposed Constitution satisfied the need for executive accountability to the public. In particular, the Federalist authors
championed the Constitution's provisions for a unitary executive, 198 an
executive whose term limited to four years, 199 and a process for impeaching a president who abrogates his responsibilities. 2° ° Other than
the accountability theoretically built into its structure, 20 ' the Constitution
196 See Shane, Inter-Branch Norms, supra note 6, at 506.
197 THE FEDERALIST No. 73, at 439 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
198 The use of unitary executive in The FederalistPapersand other writings refers to the
executive power ultimately being vested in one individual, the President, as opposed to an
executive comprising a council. See, e.g., THE FEDERALIST No. 70, at 423 (Alexander Hamil-
ton) (Clinton Rossiter ed., 2003) (inferring that executive power be vested in one individual by
discussing what would destroy a unitary executive). In The FederalistNo. 70, Hamilton noted
that "one of the weightiest objections to a plurality in the executive, and which lies as much
against the last as the first plan [for an executive council] is that it tends to conceal faults and
destroy responsibility." Id. at 426. He later wrote that "[iut is evident from these considerations that the plurality of the executive tends to deprive the people of. . . the opportunity of
discovering with facility and clearness the misconduct of the persons they trust." Id. at 427.
199 Although the federalists supported a four-year term limit, they did not want to limit
the number of times the electorate could reelect a President; a Presidency without term limits
offers greater accountability of the Executive to the electorate. See THE FEDERALIST No. 72, at
435-36 (Alexander Hamilton) (Clinton Rossiter ed., 2003). The Twenty-Second Amendment,
added in 1951, created the current two-term limit of the Presidency. U.S. CONST. amend.
XXII. Modem commentators have noted that since the Constitution does now limit the Presidency to two terms, the accountability of a President after being re-elected has been diminished greatly. See, e.g., Shane, PoliticalAccountability, supra note 24, at 199-200.
200 In The Federalist No. 69, Hamilton contrasted the accountability of the President
against that of the British monarch: "The President of the United States would be an officer
elected by the people for four years; the king of Great Britain is a perpetual and hereditary
prince. The one would be amenable to personal punishment and disgrace; the person of the
other is sacred and inviolable." THE FEDERALIST No. 69, at 420 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
201 Some commentators have noted that the framers viewed the Constitution as requiring
a relatively high degree of accountability because executive power is vested in only one person. See, e.g., Prakash, supra note 182, at 991-92. The framers of the Constitution predicted
that the President would delegate some responsibility to officials in administrative departments
but believed that the President remained ultimately responsible for their actions. Id. at
1014-15. But see Akhil Reed Amar, Essay: Some Opinions on the Opinion Clause, 82 VA. L.
REV. 647, 657-58 (1996) (noting that there is no Opinion Clause in Article I of the U.S.
Constitution that would enable Congress to demand reports from the President at will). At any
rate, the framers were clear in their overarching belief that the Presidency needed to be
strengthened, not checked, in the face of the perceived likelihood of the Legislature attempting
to dominate the other branches of the federal government. See Farina, supra note 6, at 517.
2008]
THE EXECUTIVE CREDIBILITY GAP
requires very little in terms of the President's responsiveness to the legis20 2
lative branch or the public.
As the framers developed and debated the U.S. Constitution in the
1780s and 1790s, the British monarchy's power was greatly limited as a
result of the revolution in 1688. However, the King was still the only
strong executive figure in the British government. 20 3 The position of
Prime Minister, although in existence since 1721,204 was not vested with
any significant authority until long after the time when the framers of the
U.S. Constitution were debating executive power and looking to Britain
20 5
as a potential model of government.
The extent of the Prime Minister's powers, like the President's pow20 6
ers, has shifted and expanded dramatically in the last 200-plus years.
In the late eighteenth century, the framers of the Constitution accurately
viewed the United Kingdom as a country in which the legislature had a
20 7
stronghold on many aspects of political power.
2.
Legislative Tyranny Is Fearedbut Unrealized
The consolidation of power in one branch of government was an
aspect of the British government that the framers of the U.S. Constitution
sought strenuously to avoid. 20 8 The 1688 revolution in England estab202 See McGrain v. Daugherty, 273 U.S. 131, 161 (1927) (noting that the power of legislative inquiry has been long-established in the United States and was regarded as part of the
power to legislate by the British Parliament); BERGER, supra note 60, at 2-7 (discussing the
importance of Congress's investigative function in informing itself but noting the increased
use of the executive privilege to deny congressional requests for executive information). The
framers argued for a strong Executive largely because of their belief that the British parliamentary system, which was very much a model for the U.S. Congress, was vulnerable to a tyranny
of the popular branch-the House of Commons. See TtE FEDERALIST No. 63, at 382-88
(James Madison) (Clinton Rossiter ed., 2003) (discussing the nature of the bicameral legislature and likening the House of Commons to the House of Representatives).
203 Cooper, supra note 173, at 192-93.
204 See supra Part II.A.1 (discussing the history and evolution of the position of Prime
Minister).
205 See BERGER, supra note 60, at 35-36, 42.
206 See Cooper, supra note 173, at 192-93 (noting that the current system of British government had not yet been established at the time the U.S. Constitution was being framed).
207 Farina, supra note 6, at 518.
208 In The FederalistNo. 71, Hamilton discusses the dangerous accumulation of power in
the House of Commons and offers the view that no such danger exists with the U.S.
presidency:
If a British House of Commons, from the most feeble beginnings, from the mere
power of assenting or disagreeing to the imposition of a new tax, have, by rapid
strides, reduced the prerogatives of the crown and the privileges of nobility within
the limits they conceived to be compatible with the principles of a free government,
while they raised themselves to the rank and consequence of a co-equal branch of the
legislature; if they have been able, in one instance, to abolish both the royalty and
the aristocracy, and to overturn all the ancient establishments ... if they have been
able, on a recent occasion, to make the monarch tremble at the prospect of an inno-
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lished parliamentary supremacy over the monarch and dramatically increased the political power of the House of Commons, which became an
20 9
overwhelming governmental force.
Although some anti-federalists and delegates to the Federal Convention feared a rise of a U.S. monarch, delegates were generally more concerned that the President would not be strong enough in the face of an
overreaching Legislature. 2 10 Even after proposing three separate
branches of the federal government and a system of divided functions
and checks and balances, 2 11 the framers still had to address the belief that
Congress would be able to bully and coerce the President and the Judiciary into becoming little more than puppets of the legislative branch, akin
212
to the English system at the time.
vation attempted by them, what would be to be feared from an elective magistrate of
four years' duration with the confined authorities of a President of the United States?
THE FEDERALIST No. 71, at 433-34 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
209 Hamilton outlined the need to restrain the Legislature based on the example of how
the House of Commons had stripped power from the monarchy:
At the revolution [of 1688], to abolish the exercise of [the king having control over
the army], it became an article of the Bill of Rights then framed that 'the raising or
keeping a standing army within the kingdom in time of peace, unless with the consent of Parliament,was against law.
THE FEDERALIST No. 26, at 165 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
210 Cf RAKOVE, supra note 166, at 286-87 (discussing the importance of a strong president to avoid the strong possibility of civil war).
211 The framers saw the Legislature as the greatest threat to the balance of power among
the branches of government, and structured the checks and balances accordingly, to control
and limit the reach of the Legislature. See Farina, supra note 6, at 494-96. The establishment
of a bicameral legislature was one of the key means by which the framers sought to limit the
power of Congress. In the debates at the Federal Convention of 1787, delegate James Wilson
commented:
Despotism comes on mankind in different shapes, sometimes in an Executive, sometimes in a military, one. Is there danger of a Legislative despotism? Theory and
practice both proclaim it. If the Legislative authority be not restrained, there can be
neither liberty nor stability; and it can only be restrained by dividing it within itself,
into distinct and independent branches. In a single house there is no check, but the
inadequate one, of the virtue & good sense of those who compose it.
James Madison, In Committee of the Whole on Resolutions Proposedby Mr. P & Mr. R (June
16, 1787), in 1 THE RECORDs OF THE FEDERAL CONVENTION OF 1787, at 249, 254 (M. Farrand
ed., 1911). Although some concern over the powers delegated to the Executive remained, the
belief that the Executive was significantly weaker than Congress and, considering the weakness of the position, sufficiently accountable to the public, served as a comfort. See, e.g.,
Bryan, supra note 194, at 243 (noting that the powers of Congress under the new Constitution,
are complete and unlimited over the purse and the sword).
212 In The FederalistNo. 65, responding to fears that the Legislature's ability to impeach
the President signals an overwhelming consolidation of power in the Senate, Alexander Hamilton queried whether the impeachment power would be better vested with the Supreme Court.
THE FEDERALIST No. 65, at 396-97 (Alexander Hamilton) (Clinton Rossiter ed., 2003). He
concluded that the Senate is the better repository of the impeachment power, as:
[I]t is much doubted whether the members of [the Supreme Court] would at all times
be endowed with so eminent a portion of fortitude as would be called for in the
execution of so difficult a task; and it is still more to be doubted whether they would
2008]
THE EXECUTIVE CREDIBILITY GAP
The framers recognized a serious concern over legislative dominance: "We have seen that the tendency of republican governments is to
an aggrandizement of the legislative at the expense of the other departments.1 2 13 In the FederalistNo. 51, "The Structure of the Government
Must Furnish the Proper Checks and Balances Between the Different Departments," Madison wrote that "[iln a republican government, the legislative authority necessarily predominates.1 2 14 In the FederalistNo. 71,
2 15
Hamilton, a strong believer in a powerful presidency, concurred.
The fear of legislative dominance led the framers to act accordingly
by embodying a low level of presidential responsiveness in the Constitution. 2 16 Yet, that original structure has been vulnerable to the executive
branch's ability to consolidate power. 2 17 This history demands consideration of different institutional elements to strengthen Congress's hand,
such as a Question Time. In fact, such an arrangement was considered
soon after the ratification of the Constitution, during the First Congress.
C.
EARLY EXPERIMENTS WITH INTER-BRANCH COMMUNICATIONS
In the years immediately following the ratification of the Constitution, Congress and the President frequently experimented with various
possess the degree of credit and authority which might, on certain occasions, be
indispensable towards reconciling the people to a decision that should happen to
clash with an accusation brought by their immediate representatives.
Id. at 396.
213 THE FEDERALIST No. 49, at 313-14 (James Madison) (Clinton Rossiter ed., 2003).
214 THE FEDERALIST No. 51, at 319-20 (James Madison) (Clinton Rossiter ed., 2003).
Madison discussed the need for a bicameral legislature to diffuse the power, but noted that
further measures may be warranted: "[iut may even be necessary to guard against dangerous
encroachments by still further precautions. As the weight of the legislative authority requires
that it should be thus divided, the weakness of the executive may require, on the other hand,
that it should be fortified." Id.
215 THE FEDERALIST No. 71 (Alexander Hamilton). Hamilton wrote:
The tendency of the legislative authority to absorb every other has been fully displayed and illustrated by examples in some preceding [Federalist papers]. In governments purely republican, this tendency is almost irresistible. The representatives
of the people, in a popular assembly, seem sometimes to fancy that they are the
people themselves, and betray strong symptoms of impatience and disgust at the
least sign of opposition from any other quarter; as if the exercise of its rights, by
either the executive or the judiciary, were a breach of their privilege and an outrage
to their dignity.
THE FEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 2003). As Hamilton makes clear, even with the formal separation of powers, the Legislature has the tendency
to subsume other branches of government: "[Legislators] often appear disposed to exert an
imperious control over the other departments; and as they commonly have the people on their
side, they always act with such momentum as to make it very difficult for the other members
of the government to maintain the balance of the Constitution." Id. Madison agreed with this
assessment, although to a more moderate extent. See THE FEDERALIST No. 49, at 313-14
(James Madison) (Clinton Rossiter ed., 2003).
216 See supra Part II.B.1.
217 See Farina, supra note 6, at 503-05.
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techniques in how best to operate the government. 21 8 In the course of
determining how Congress was to exercise its power of inquiry into executive branch activities, the first Congress experimented with measures
that would have the President answering questions on the floor of the
2 19
House or Senate.
For example, in 1789, soon after George Washington was sworn
in220 and the first session of the House of Representatives was convened, 22' the House began considering a bill to establish the Treasury
Department. 222 The bill included language that would obligate the Secretary of the Treasury to "digest and report plans for the improvement
and management of the revenue, and the support of the public credit. '223
The idea of the Treasury Secretary "reporting" to the House of Representatives created discomfort among representatives who perceived it as
a means by which the executive branch could intrude on legislators and
attempt to influence their opinions. 224 One Representative believed that
the State of the Union address represented the constitutional extent of
personal appearances that the President should make before Congress. 22 5
Another Representative concurred, citing the danger of "having prime
and great ministers of State. '226 These doubts arose amid concern that
the United States government would devolve into one like the United
227
Kingdom.
Eventually the House of Representatives passed the Treasury Department bill, but only after the word "report" was replaced with "prepare. '228 This revision led to the practice of information-sharing being
carried out in writing. 229 The level of unease among some representatives in the years immediately folling the ratification of the Constitution
218 RAKOVE, supra note 166, at 358-61.
219 See Casper, supra note 21, at 227.
220 George Washington was sworn in on April 30, 1789. JOSEPH J. ELLIS, His EXCELLENCY: GEORGE WASHINGTON 185-86 (2004).
221 The first session of the U.S. Congress was convened from March 4, 1789 to March 3,
1791. THE OXFORD COMPANION TO UNITED STATES HISTORY 256 (Paul S. Boyer ed., 2001).
222 The House of Representatives is vested with the right to originate bills concerning the
of revenue for the federal government. U.S. CONST. art. I, § 7, cl.1.
Casper, supra note 21, at 227 (citing I ANNALS OF CONG. 592 (Joseph Gales ed.,
raising
223
1789)).
224
225
226
Id. at 228 (citing I ANNALS OF CONG. 592-93 (Joseph Gales ed., 1789)).
Id. (citing I ANNALS OF CONG. 593 (Joseph Gales ed., 1789)).
Id. (citing I ANNALS OF CONG. 601 (Joseph Gales ed., 1789)). Congressman Gerry
was accurate in his portrayal of the parliamentary system. By 1789, when the first Congress
was convened, the practice of oral parliamentary questions in Britain had been growing for
over 50 years. See supra Part III.A.
227 See supra Part II.A-B for a full discussion of the framers' efforts to prevent the development of a tyrannical government in the United States.
228 Casper, supra note 21, at 228 (citing I ANNALS OF CONG. 607 (Joseph Gales ed.,
1789)).
229 Casper, supra note 21, at 227-28.
2008]
THE EXECUTIVE CREDIBILITY GAP
at the prospect of the President somehow participating in congressional
floor debate is understandable: the legislative and executive branches are
meant to serve very different purposes under the Constitution, and the
relationship between the branches is extremely different from that between the Prime Minister and the other Members of Parliament, where
such participation is normal. 230 Even the current language of the rules of
the Senate and House of Representatives codify this sense of caution,
limiting the President's presence in those chambers to those occasions
for which the unanimous consent of the legislators has been secured. 23 '
Another example of wrangling between the President and the first
Congress over how best to interact arose in the context of the Senate's
role to "advise and consent" to the making of treaties. 232 In the process
of negotiating a treaty with certain Native American tribes, President
Washington "sent a message to the Senat[e] informing them that he
would meet them in their chamber the following day" to discuss the
terms of the treaty. 233 In a manner rather similar to that of the British
system of parliamentary questions, President Washington was accompanied by the Secretary of War to assist in answering the Senators' questions. 234 The discussion was awkward and not particularly useful, since
the senators' questions were "too complex to be dealt with orally and
without preparation. ' 235 After this experience, the President sought ad236
vice from the Senate on the making of treaties only in writing.
The experiments of President Washington and the first Congress
make clear that the modes of communication between the executive and
legislative branches were not cemented in the language of the new Constitution. 2 37 Rather, the early politicians established norms of behavior
that suited the political context of the time.
230 Scheppele, supra note 27, at 1001 (noting the plasticity of intragovernmental relations
in emerging constitutional structures). A President's Question Time would not allow the President to intrude upon the debate and deliberations of Congress in the same way. To the contrary, the President would have an opportunity to explain and defend those policies that
representatives choose to question him about, and the President would not have the ability to
dictate the terms or the logistics of his appearance before the House.
231 FLOYD RIDDICK & ALAN FRUMIN, RIDDICK'S SENATE PROCEDURE, S. Doc. No. 10128, at 1009 (revised 1992); JOHN
V. SULLIVAN,
CONSTITUTION, JEFFERSON'S MANUAL,
RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES,
AND
H.R. Doc. No. 109-157
(2007).
232 U.S. CONST. art. 11, § 2, cl.2 ("[The President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties ....").
233 Casper, supra note 21, at 226-27 (citing I ANNALS OF CONG. 65 (Joseph Gales ed.,
1789)).
234 Id. at 227.
235 Id.
1 ANNALS OF CONG. 592 (Joseph Gales ed., 1789)).
237 Contra Clinton v. City of New York, 524 U.S. 417, 439-40, 448 (1998) (holding that
a line-item veto was unconstitutional because there was no reference to it in the Constitution
236 Id. at 227 (citing
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Perhaps the low level of responsiveness of the Executive2 38 to the
public would continue to be preferable if the framers' fear of legislative
tyranny were realized. Legislative tyranny, however, has not come to
pass as the Legislature has not become the dominant branch of government against which other branches fight for control. 239 Instead, the executive branch has asserted significant powers not contemplated by the
Constitution's framers. 240 The President has leverage over other politicians through his unmatched ability to influence the media and voters. 24 1
This history gives rise to the question of whether the institutional elements of inter-branch dynamics should be adjusted to re-establish the
balanced and divided model of government envisioned by the
242
Framers.
One way to begin resolving this systemic imbalance is to increase
the means by which the people can hold the President accountable for his
actions. 24 3 A President's Question Time would establish a new instituand there was no evidence of its consideration contemporaneous to the drafting and ratification
of the Constitution).
238 Cooper, supra note 173, at 171 (stating that the President, under the Constitution,
"was neither responsible to, nor removable by, the legislative branch," other than by
impeachment).
239 See Farina, supra note 6, at 511-12 ("The legislative delegation of regulatory authority [to the President] implicates separation of powers by threatening to undermine structural
protections against the accumulation (and consequent abuse) of power.").
240 Zuckerman, supra note 25, at 84-87 (noting that the Framers envisioned an executive
"only strong enough to offset the legislature, not to overmaster it," and devised a system of
government more candid and responsive to the people than what has occurred in recent administrations); THE FEDERALIST No. 48, at 247 (James Madison) (Clinton Rossiter ed., 2003) ("An
elective despotism was not the Government we fought for; but one which should not only be
founded on free principles, but in which the powers of government should be so divided and
balanced among several bodies of magistracy, as that no one could transcend their legal limits,
without being effectually checked and restrained by the others.").
241 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (1952) (Jackson, J.,
concurring) (describing the President's unique power in society and government: "No other
personality in public life can begin to compete with him in access to the public mind through
modern methods of communications. By his prestige as head of state and his influence upon
public opinion he exerts a leverage upon those who are supposed to check and balance his
power which often cancels their effectiveness.").
242 See HARDIN, supra note 129, at 6; Farina, supra note 6, at 519-20 ("[The Framers']
emphasis on shoring up the President's position arose not from the expectation that he would
emerge as the dominant domestic policy-making force, but rather from sad experience that no
branch could be trusted with too much power.... Thus, history affords no basis for assuming
that the constitutional structure was set up to favor a predominant role for the President. Indeed, to divorce the Framers' concern for establishing a strong Chief Executive from its context poses a grave risk of using their words to sanction precisely the sort of harm they had
determined to avoid: a dangerous concentration of authority in one power center of
government.").
243 James Madison wrote of the need to acknowledge the danger of an unbalanced government, and to act to cure it:
By a faction, I understand a number of citizens, whether amounting to a majority or
minority of the whole, who are united and actuated by some common impulse of
2008]
THE EXECUTIVE CREDIBILITY GAP
tional element not entirely different from that contemplated in the first
Congress and would be appropriate given the present political context
244
and current imbalance of powers among the branches of government.
IV.
INFORMATION-SHARING IN THE MODERN ERA
A President's Question Time would fit within the current framework of information-sharing relationships that exists between the legislative and executive branches. 245 These information-sharing relationships
take numerous forms, depending on what congressional power the Legislature is invoking in making the information request and to what extent
246
the executive branch responds or invokes executive privilege.
The everyday interactions between the Legislature and the executive
branch involve numerous statutes that require information from the administration. 24 7 The executive branch routinely complies with the compassion, or of interest, adverse to the rights of other citizens, or to the permanent and
aggregate interests of the community. There are two methods of curing the mischiefs of faction: The one, by removing its causes; the other, by controling its
effects.
THE FEDERALIST No. 10, at 54 (James Madison) (Clinton Rossiter ed., 2003). Although
Madison's argument referred to the dangers of faction, it is equally applicable to a government
in which the control mechanisms are no longer working as they should.
244 See Wald & Kinkopf, supra note 65, at 41 (illustrating the need for additional oversight options through the perception that, "[Congress] cannot muster the institutional cohesion
to stand up to an overbearing executive, even if it possesses the desire to do so."); see also
supra Part I.B, for a discussion of the consolidation of power in the executive branch.
245 I am not considering oversight measures that Congress has used to exercise control
over the executive branch, since they do not deal strictly with information disclosure. See,
e.g., Ethics in Government Act, 28 U.S.C. §§ 591-598 (1982) [hereinafter Independent Counsel Statute]. The Independent Counsel Statute was made in the wake of the Watergate scandal,
when the movement for Congressional oversight of the executive branch gained momentum.
See Carter, supra note 6, at 107-08. The constitutionality of the Statute was upheld in Morrison v. Olson in which the court found that the Statute did not abrogate the constitutionally
prescribed separation of powers. See generally Morrison v. Olson, 487 U.S. 654 (1988). Professor Carter views the Morrison decision as an example of the Supreme Court taking a pragmatic view of the separation of powers doctrine and paying little attention to the historical
legitimacy of an institution such as the independent counsel. Carter, supra note 6, at 110.
Although measures such as the War Powers Resolution and Independent Counsel Statute have
been extraordinarily controversial in this regard, neither has been voided or declared unconstitutional by the courts. See Morrison, 487 U.S. at 695-97 (upholding the independent counsel
statute). The legislative veto, on the other hand, was struck down on separation of powers
grounds in INS v. Chadha. See generally INS v. Chadha, 462 U.S. 919 (1983).
246 INS v. Chadha observes that only four areas of power can be exercised unilaterally by
the House or the Senate: the House has the right to initiate impeachment (U.S. CONST. art. 1,
§ 2, cl. 5), the Senate has the right to conduct a trial following impeachment (U.S. CONST. art.
I, § 3, cl. 6), the Senate has the sole power to approve or disapprove Presidential appointments
(U.S. CONST. art. H, § 2, cl. 2), and the Senate has the sole power to ratify treaties negotiated
by the President (U.S. CONST. art. II, § 2, cl. 2). Chadha, 462 U.S. at 955.
247 E.g., 31 U.S.C. § 1105 (2007) (requiring the President to submit an annual budget to
Congress, and delineating the specific provisions that the President must include within the
budget); 15 U.S.C. § 1022 (2007) (requiring the President to submit to Congress an annual
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CORNELL JOURNAL OF LAW AND PUBLIC POLICY
[Vol. 17:247
mon reporting requirements embedded in standard legislation requests
for information, such as those associated with Congress's appropriations
function. 24 8 Demands for information stemming from those acts and resolutions which implicate Congress's right to declare war, such as the
War Powers Resolution, however, have encountered far more resistance
from the executive branch. 249
The result of public and legislative requests for executive branch
information depends on the decision of the executive branch with regard
to each request. The Government Accountability Office (formerly the
General Accounting Office), a watchdog agency that reports to Congress
on activities of the administrative departments 250 and provides non-binding decisions as to the propriety of the actions of the administrative departments, regularly makes specific requests for executive branch
25
information, with a positive rate of return. '
Another statutory mechanism promoting public disclosure is the
Freedom of Information Act (FOIA), which enables the Legislature and
the public to gain access to documents within the ambit of the executive
branch and administrative departments. 252 In terms of the type of information to be disclosed, FOIA provides a limited analogy to a President's
Question Time, although FOIA is limited to disclosure by government
agencies. 253 Similar to the Prime Minister's Question Time, 254 FOIA
economic report detailing, among other things, forecasts for the economic well-being of the
country in the coming year).
248 See Amar, supra note 201, at 657 (addressing the right of Congress to require such
information).
249 See War Powers Resolution, 50 U.S.C.S. § 1543(c) (LexisNexis 1973) (requiring the
President to report to Congress at least every six months on the status and progress of U.S.
troops deployed on certain missions). The obligation of the Executive to disclose information
to Congress under the War Powers Resolution remains unresolved. See Carter, supra note
172, at 105.
250 Budget and Accounting Act of 1921, Pub. L. No. 67-13, 42 Stat. 20 (creating the
General Accounting Office).
251 See U.S. GOV'T ACCOUNTABILITY OFFICE, PERFORMANCE AND ACCOUNTABILITY
HIGHLIGHTS: FIsCAL YEAR 2006, 9-10 (2007) (noting that 82% of GAO recommendations
were accepted and implemented by agencies).
252 The Freedom of Information Act was originally enacted as part of the Administrative
Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (1946), and a stronger version was
signed into law by President Lyndon Johnson in 1966, Pub. L. No. 89-487, 80 Stat. 250
(1966). During the Senate floor debates on the 1966 amendments, backers of the move toward
fuller disclosure invoked Madison's Federalist Paper writings, citing the need for a government accountable to the public. 111 CoNG. REc. 26821 (1965). The current version of FOIA
is codified at 5 U.S.C. § 552 (2002) (as amended by Pub. L. No. 104-231, 110 Stat. 3048).
253 FOIA requests are limited to documents, which makes the nature of a President's
Question Time fundamentally different. See generally Freedom of Information Act, 5 U.S.C.
§ 552 (2002). However, the scope and type of information requested would be similar.
254 Under Britain's Official Secrets Act 1989, government officials in the United Kingdom who are privileged with classified information, primarily related to national security and
military intelligence, are not only freed from an obligation to disclose such information, but
are affirmatively barred from doing so. Britain's Official Secrets Act, 1989, c. 6, § 6. Though
2008]
THE EXECUTIVE CREDIBILITY GAP
allows for exceptions to disclosure based on national security, trade
secrets, and other grounds. 255 Insofar as a President's Question Time is
similar to FOIA, the institution is likely to withstand constitutional
256
scrutiny.
Legislative information demands are routinely complicated by executive privilege. 2 57 The Legislature or the Executive that makes a request
for information or invokes executive privilege must protect its own interests while attempting not to violate the "fundamental necessity of maintaining each of the three general departments of government entirely free
from the control or coercive influence, direct or indirect, of either of the
others. '258 The liberal invocation of executive privilege could serve to
defeat the purpose of a Question Time, just as it could with any other
legislation that seeks information from the executive branch. 259 However, political and public pressure toward disclosure, particularly when
the President himself 260 would need to publicly claim the privilege after
being asked a question, would likely curb the extent to which a President
would choose to invoke
it.261
FOIA and its exceptions operate on a different premise, comparing the institutionalized barring
of information-sharing is at least superficially useful.
255 It is fair to question the extent of FOIA's utility given the fact that the President and
heads of federal agencies can decline to provide information on a wide range of topics based
on FOIA's exceptions. See Jane E. Kirtley, Transparency and Accountability in a Time of
Terror: The Bush Administration'sAssault on Freedom of Information, 11 COMM. L. & POL'Y
479, 496-99 (2006); Bradley Pack, Note, FOIA Frustration:Access to Government Records
Under the Bush Administration, 46 ARIz. L. REV. 815, 820-21 (2004). Nonetheless, there are
clear benefits to having FOIA in place, despite a lack of government responsiveness at times.
See generally H.R. REP. No. 89-1497 (1966); S. REP. No. 89-813 (1965).
256 Although various administrations may have attempted to weaken FOIA's effect, the
constitutionality of FOIA itself has not been seriously questioned. See, e.g., supra note 53 and
accompanying text. More commonly, the Supreme Court relies on the provisions of FOIA and
its legislative history to determine whether certain information from the executive branch is
appropriate to disclose under FOIA. See, e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 360
(1976) (citing S. REP.No. 89-813, at 3 (1965)); E.P.A. v. Mink, 410 U.S. 73, 80 (1973) (citing
S. REP. No. 89-813 (1965)).
257 See, e.g., Peter M. Shane, Negotiatingfor Knowledge: Administrative Responses to
Congressional Demandsfor Information, 44 ADMIN. L. REV. 197, 199-200 (1992).
258 Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935). The Court in
Humphrey's upheld congressionally mandated limitations on the removal power of the President as consistent with the separation of powers doctrine. Id. at 630.
259 See Morrison, supra note 36, at 1234-37 (noting how abuses of constitutional avoidance theory could lead to the executive branch choosing not to enforce laws that enable greater
legislative oversight of the executive branch); see also Levinson, supra note 14, at 107 (stating
that a President who believed strongly in his own right to interpret the Constitution without
consideration of legislative intent would likely assert the freedom to ignore laws that seem to
impinge on presidential powers).
260 Having the President himself answer questions would also circumvent the problem of
executive branch officials having to wait for presidential approval of information disclosure in
response to Congressional inquiries. See generally Wald & Kinkopf, supra note 65, at 50.
261 Public and political pressure can sometimes compel disclosure of information that the
executive branch previously regarded "privileged." See Shane, supra note 257, at 222.
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CONCLUSION
The structure of our Constitution is premised on each branch of
government exercising its rights to prevent any one branch from overreaching. Over time, the executive branch has consolidated a great deal
of power and now exerts ever-stronger control over the information it
discloses. When Congress, particularly in times of one-party government, chooses not to exercise its right to check executive overreaching,
the envisioned balance in government comes undone.
The lack of balance fosters a lack of accountability and transparency
in government and demands an adjustment to our system. One adjustment should come in the form of a President's Question Time, an institutional element that would give muscle to Congress in times of one-party
government, and that would further accountability and promote good
government that is responsive to the people.